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Hugo Grotius, The Freedom of the Seas, or the Right Which Belongs to the Dutch to take part in the East Indian Trade, Translated by Ralph Van Deman Magoffin, Introduction by James Brown Scott, Director of the Carnegie Endowment for International Peace (New York: Oxford University Press, 1916).
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About this Title:

This edition of Grotius’ defence of the right of all nations (especially the Dutch) to use the international sea lanes for trade, was published during World War One by the Carnegie Endowment for International Peace as part of their International Law series. It is interesting because it has the Latin and English translation on facing pages (best viewed in the facsimile PDF version).

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Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL
LAW

THE FREEDOM OF THE SEAS OR THE RIGHT WHICH BELONGS TO THE DUTCH TO
TAKE PART IN THE EAST INDIAN TRADE

A DISSERTATION BY HUGO GROTIUS

translated with a revision of the latin text of 1633
by RALPH VAN DEMAN MAGOFFIN, Ph.D. Associate in Greek
and Roman History and Roman Archaeology The Johns Hopkins
University

edited with an introductory note by JAMES BROWN
SCOTT DIRECTOR

NEW YORK OXFORD UNIVERSITY PRESS AMERICAN BRANCH: 35
West 32nd Streetlondon, toronto, melbourne,
and bombay humphrey milford

1916

Edition: current; Page: [none]

COPYRIGHT 1916 by the CARNEGIE ENDOWMENT FOR
INTERNATIONAL PEACE Washington, D. C.

the quinn & boden co. press rahway, n. j.

Edition: current; Page: [v]

INTRODUCTORY NOTE

Since the month of August, 1914, the expression “Freedom of the Seas” has
been on the lips alike of belligerent and neutral, and it seems as advisable as
it is timely to issue—for the first time in English—the famous Latin tractate
of Grotius proclaiming, explaining, and in no small measure making the “freedom
of the seas.”
1

The title of the little book, first published, anonymously, in November,
1608, explains the reason for its composition: “The Freedom of the Seas, or the
Right which belongs to the Dutch to take part in the East Indian trade.” It was
an open secret that it was written by the young Dutch scholar and lawyer, Hugo
Grotius. It was a secret and remained a secret until 1868 that the
Mare Liberum was none other than Chapter XII of the
treatise De Jure Praedae, written by Grotius in the winter
of 1604–5, which first came to light in 1864 and was given to the world four
years later.
2

The publication of the treatise on the law of prize is important as showing
that the author of the Mare Liberum was already an
accomplished international lawyer, and it
Edition: current; Page: [vi] proves beyond peradventure that the masterpiece of
1625 on the “Law of War and Peace” was not a hurried production, but the
culmination of study and reflection extending over twenty years and more. More
important still is the fact that neither the law of prize nor the
Mare Liberum was a philosophic exercise, for it appears
that Grotius had been retained by the Dutch East India Company to justify the
capture by one of its ships of a Portuguese galleon in the straits of Malacca
in the year 1602; that the treatise on the law of prize, of which the
Mare Liberum is a chapter, was in the nature of a brief;
and that the first systematic treatise on the law of nations—The Law of War and
Peace—was not merely a philosophical disquisition, but that it was the direct
outgrowth of an actual case and of professional employment.
1

Edition: current; Page: [vii]

The Spaniards, as is well known, then claimed the Pacific Ocean and the Gulf
of Mexico, and Portugal claimed, in like manner, the Atlantic south of Morocco
and the Indian Ocean, and both nations, at this time under a common sovereign,
claimed and sought to exercise the right of excluding all foreigners from
navigating or entering these waters. The Dutch, then at war with Spain,
although not technically at war with Portugal, established themselves in 1598
in the island of Mauritius. Shortly thereafter they made settlements in Java
and in the Moluccas. In 1602 the Dutch East India Company was formed, and, as
it attempted to trade with the East Indies, its vessels came into competition
with those of the Portuguese engaged in the Eastern trade, which sought to
exclude them from the Indian waters. One Heemskerck, a captain in the employ of
the Company, took a large Portuguese galleon in the Straits of Malacca. To
trade with the East Indies was one thing, to capture Portuguese vessels was
quite another thing. Therefore, some members of the Company refused their parts
of the prize; others sold their shares in the company, and still others thought
of establishing a new company in France, under the protection of King Henry IV,
which should trade in peace and abstain from all warlike action. The matter was
therefore one of no little importance, and it appears that Grotius was
consulted and wrote his treatise on the law of prize, which is in the nature of
a brief and is, at any rate, a lawyer’s argument.
1

Edition: current; Page: [viii]

In 1608 Spain and Holland began negotiations which, on April 9, 1609,
resulted in the truce of Antwerp for the period of 12 years, and, in the course
of the negotiations, Spain tried to secure from the United Provinces a
renunciation of their right to trade in the East and West Indies. The Dutch
East India Company thereupon, it would appear, requested Grotius to publish
that part of his brief dealing with the freedom of the seas. This was done
under the title of Mare Liberum, with such changes as were
necessary to enable it to stand alone.

It will be observed that the Mare Liberum was written
to refute the unjustified claims of Spain and Portugal to the high seas and to
exclude foreigners therefrom. The claims of England, less extensive but not
less unjustifiable, were not mentioned, and yet, if the arguments of Grotius
were sound, the English claims to the high seas to the south and east of
England, as well as to undefined regions to the north and west, would likewise
fall to the ground. Therefore the distinguished English lawyer, scholar, and
publicist, John Selden by name, bestirred himself in behalf of his country and
wrote his Mare Clausum in 1617 or 1618, although it was
not published until 1635, to refute the little tractate, Mare
Liberum.1
In the dedication to King Charles I,
Edition: current; Page: [ix] Selden said: “There are among foreign writers, who
rashly attribute your Majesty’s more southern and eastern sea to their princes.
Nor are there a few, who following chiefly some of the ancient Caesarian
lawyers, endeavor to affirm, or beyond reason too easily admit, that all seas
are common to the universality of mankind.” The thesis of Selden was twofold:
first, “that the sea, by the law of nature or nations, is not common to all
men, but capable of private dominion or property as well as the land”; second,
“that the King of Great Britain is lord of the sea flowing about, as an
inseparable and perpetual appendant of the British Empire.”

In this battle of books, to use the happy expression of Professor Nys, the
Dutch Scholar has had the better of his English antagonist. If it cannot be
said that Grotius wears his learning “lightly like a flower”, the treatise of
Selden is, in comparison, over-freighted with it; the Mare
Liberum is still an open book, the Mare Clausum is
indeed a closed one, and as flotsam or jetsam on troubled waters, Chapter XII
of the Law of Prize rides the waves, whereas its rival, heavy and water-logged,
has gone under.

In the leading case of The Louis (2 Dodson 210), decided in 1817, some two
hundred years after Selden’s book was written, Sir William Scott, later Lord
Stowell and one of Selden’s most distinguished countrymen, said, in rejecting
the claim of his country to the exercise of jurisdiction beyond a marine league
from the British shore:

Edition: current; Page: [x]

I have to observe, that two principles of public law are generally
recognized as fundamental.

One is the perfect equality and entire independence of all distinct states.
Relative magnitude creates no distinction of right; relative imbecility,
whether permanent or casual, gives no additional right to the more powerful
neighbor; and any advantage seized upon that ground is mere usurpation. This is
the great foundation of public law, which it mainly concerns the peace of
mankind, both in their politic and private capacities, to preserve
inviolate.

The second is, that all nations being equal, all have an equal right to the
uninterrupted use of the unappropriated parts of the ocean for their
navigation. In places where no local authority exists, where the subjects of
all states meet upon a footing of entire equality and independence, no one
state, or any of its subjects, has a right to assume or exercise authority over
the subjects of another.

In closing the preface to the Mare Clausum, Selden used
language, which the undersigned quotes, albeit in an inverse sense, as a fit
ending to this subject:

“Other passages there are everywhere of the same kind. But I enlarge myself
too much in a thing so manifest. Therefore I forbear to light a candle to the
sun. Farewell reader.”

James Brown Scott,Director of the
Division of International Law.

Washington, D. C.,

February 28, 1916.

Edition: current; Page: [xi]

TRANSLATOR’S PREFACE

The Latin Text

The Latin Text is based upon the Elzevir edition of 1633, the modifications
being only such as to bring the Latin into conformity with the present day
Teubner and Oxford texts.

References in the notes to classic authors are given in unabbreviated form,
following in other respects the Thesaurus Linguae Latinae Index. Citations to
the Civil Law are given in the modern notation, which is followed, in
parentheses, by the older method of reference. The text used is that of
Mommsen, Krueger, Schoell et Kroll. The Canon Law is cited from the Friedberg
edition of 1879–81. The abbreviations used are explained below.

The Translation

The translator wishes to make due acknowledgment for the passages from
classic writers quoted from standard translations, to which references are also
made in the notes. He has also consulted the French translation of Grotius by
A. Guichon de Grandpont (1845). But his chief acknowledgment is to his
colleague and friend, Professor Kirby Flower Smith of The Johns Hopkins
University, to whom he read the translation, and who gave him the benefit of
his knowledge of Latin and his taste in English, in a number of troublesome
passages. Many niceties of the translation belong to Professor Smith, but
mistakes in interpretation belong to the translator alone.

Acknowledgment and thanks are also due to Professor
Edition: current; Page: [xii] Westel Woodbury Willoughby of Johns Hopkins, who has
been so good as to read the translation through in galley proof and give the
translator the benefit of his technical knowledge of law; to Bishop Shahan,
Rector of the Catholic University of America, who has given of his time to help
expand several of Grotius’ abbreviated references to theological or canonical
authors; and to John Curlett Martin, Johns Hopkins Fellow in Greek, who has
been of great assistance in the verification of references.

List of Abbreviations

Auth., Authenticum.

Clem., Constitutiones Clementis Papae Quinti.

Dist., Distinctio Decreti Gratiani.

Extravag., Constitutiones XX D. Ioannis Papae XXII.

Lib. VI, Liber sextus Decretalium D. Bonifacii Papae VIII.

Other abbreviations should offer no difficulties.

Notes of Explanation

The words and phrases in the Latin text in capitals follow the type of the
Elzevir text.

In order that both text and translation may be complete in themselves, the
notes below the translation follow the notes of the text in shortened or
expanded form, or in duplicate, as the occasion would seem to demand.

[] in the translation, text, or notes, inclose additions made by the
translator.

TO THE RULERS AND TO THE FREE AND INDEPENDENT
NATIONS OF CHRISTENDOM

The delusion is as old as it is detestable with which many men, especially
those who by their wealth and power exercise the greatest influence, persuade
themselves, or as I rather believe, try to persuade themselves, that justice
and injustice are distinguished the one from the other not by their own nature,
but in some fashion merely by the opinion and the custom of mankind. Those men
therefore think that both the laws and the semblance of equity were devised for
the sole purpose of repressing the dissensions and rebellions of those persons
born in a subordinate position, affirming meanwhile that they themselves, being
placed in a high position, ought to dispense all justice in accordance with
their own good pleasure, and that their pleasure ought to be bounded only by
their own view of what is expedient. This opinion, absurd and unnatural as it
clearly is, has gained considerable currency; but this should by no means
occasion surprise, inasmuch as there has to be taken into consideration not
only the common fraily of the human race by which we pursue not only vices and
their purveyors, but also the arts of flatterers, to whom power is always
exposed.

But, on the other hand, there have stood forth in every age independent and
wise and devout men able to root out this false doctrine from the minds of the
simple, and to convict its advocates of shamelessness. For they showed that God
was the founder and ruler of the universe, and especially that being the Father
of all mankind, He had not separated human beings, as He had the rest of living
things, into different species and various divisions, but had willed them to be
of one race and to be known by one name; that
Edition: current; Page: [2] furthermore He had given them the same origin, the
same structural organism, the ability to look each other in the face, language
too, and other means of communication, in order that they all might recognize
their natural social bond and kinship. They showed too that He is the supreme
Lord and Father of this family; and that for the household or the state which
He had thus founded, He had drawn up certain laws not graven on tablets of
bronze or stone but written in the minds and on the hearts of every individual,
where even the unwilling and the refractory must read them. That these laws
were binding on great and small alike; that kings have no more power against
them than have the common people against the decrees of the magistrates, than
have the magistrates against the edicts of the governors, than have the
governors against the ordinances of the kings themselves; nay more, that those
very laws themselves of each and every nation and city flow from that Divine
source, and from that source receive their sanctity and their majesty.

Now, as there are some things which every man enjoys in common with all
other men, and as there are other things which are distinctly his and belong to
no one else, just so has nature willed that some of the things which she has
created for the use of mankind remain common to all, and that others through
the industry and labor of each man become his own. Laws moreover were given to
cover both cases so that all men might use common property without prejudice to
any one else, and in respect to other things so that each man being content
with what he himself owns might refrain from laying his hands on the property
of others.

Now since no man can be ignorant of these facts unless he ceases to be a
man, and since races blind to all truth except what they receive from the light
of nature, have recognized their force, what, O Christian Kings and Nations,
ought you to think, and what ought you to do?

Edition: current; Page: [3]

If any one thinks it hard that those things are demanded of him which the
profession of a religion so sacred requires, the very least obligation of which
is to refrain from injustice, certainly every one can know what his own duty is
from the very demands he makes of others. There is not one of you who does not
openly proclaim that every man is entitled to manage and dispose of his own
property; there is not one of you who does not insist that all citizens have
equal and indiscriminate right to use rivers and public places; not one of you
who does not defend with all his might the freedom of travel and of trade.

If it be thought that the small society which we call a state cannot exist
without the application of these principles (and certainly it cannot), why will
not those same principles be necessary to uphold the social structure of the
whole human race and to maintain the harmony thereof? If any one rebels against
these principles of law and order you are justly indignant, and you even decree
punishments in proportion to the magnitude of the offense, for no other reason
than that a government cannot be tranquil where trespasses of that sort are
allowed. If king act unjustly and violently against king, and nation against
nation, such action involves a disturbance of the peace of that universal
state, and constitutes a trespass against the supreme Ruler, does it not? There
is however this difference: just as the lesser magistrates judge the common
people, and as you judge the magistrates, so the King of the universe has laid
upon you the command to take cognizance of the trespasses of all other men, and
to punish them; but He has reserved for Himself the punishment of your own
trespasses. But although He reserves to himself the final punishment, slow and
unseen but none the less inevitable, yet He appoints to intervene in human
affairs two judges whom the luckiest of sinners does not escape, namely,
Conscience, or the innate estimation of oneself, and Public Opinion, or the
estimation of others.
Edition: current; Page: [4] These two tribunals are open to those who are debarred
from all others; to these the powerless appeal; in them are defeated those who
are wont to win by might, those who put no bounds to their presumption, those
who consider cheap anything bought at the price of human blood, those who
defend injustice by injustice, men whose wickedness is so manifest that they
must needs be condemned by the unanimous judgment of the good, and cannot be
cleared before the bar of their own souls.

To this double tribunal we bring a new case. It is in very truth no petty
case such as private citizens are wont to bring against their neighbors about
dripping eaves or party walls; nor is it a case such as nations frequently
bring against one another about boundary lines or the possession of a river or
an island. No! It is a case which concerns practically the entire expanse of
the high seas, the right of navigation, the freedom of trade!! Between us and
the Spaniards the following points are in dispute: Can the vast, the boundless
sea be the appanage of one kingdom alone, and it not the greatest? Can any one
nation have the right to prevent other nations which so desire, from selling to
one another, from bartering with one another, actually from communicating with
one another? Can any nation give away what it never owned, or discover what
already belonged to some one else? Does a manifest injustice of long standing
create a specific right?

In this controversy we appeal to those jurists among the Spanish themselves
who are especially skilled both in divine and human law; we actually invoke the
very laws of Spain itself. If that is of no avail, and those whom reason
clearly convicts of wrong are induced by greed to maintain that stand, we
invoke your majesty, ye Princes, your good faith, ye Peoples, whoever and
wherever ye may be.

It is not an involved, it is not an intricate question that I am raising. It
is not a question of ambiguous points of
Edition: current; Page: [5] theology which seem to be wrapped in the deepest
obscurity, which have been debated already so long and with such heat, that
wise men are almost convinced that truth is never so rarely found as when
assent thereto is forced. It is not a question of the status of our government
and of independence not won by arms but restored. On this point those can reach
a right decision who have an accurate knowledge of the ancestral laws and
hereditary customs of the people of the Netherlands, and who have recognized
that their state is not a kingdom illegally founded but is a government based
upon law. In this matter, however, just judges no longer compelled to
subordinate their convictions have been persuaded; the public authority of many
nations has entirely satisfied those who were seeking a precedent; and the
admissions of our adversaries have left even the foolish and malevolent no room
for doubt.

But what I here submit has nothing in common with these matters. It calls
for no troublesome investigation. It does not depend upon an interpretation of
Holy Writ in which many people find many things they cannot understand, nor
upon the decrees of any one nation of which the rest of the world very properly
knows nothing.

The law by which our case must be decided is not difficult to find, seeing
that it is the same among all nations; and it is easy to understand, seeing
that it is innate in every individual and implanted in his mind. Moreover the
law to which we appeal is one such as no king ought to deny to his subjects,
and one no Christian ought to refuse to a non-Christian. For it is a law
derived from nature, the common mother of us all, whose bounty falls on all,
and whose sway extends over those who rule nations, and which is held most
sacred by those who are most scrupulously just.

Take cognizance of this cause, ye Princes, take cognizance of it, ye
Nations! If we are making an unjust demand, you know what your authority and
the authority of
Edition: current; Page: [6] those of you who are our nearer neighbors has always
been so far as we are concerned. Caution us, we will obey. Verily, if we have
done any wrong in this our cause, we will not deprecate your wrath, nor even
the hatred of the human race. But if we are right, we leave to your sense of
righteousness and of fairness what you ought to think about this matter and
what course of action you ought to pursue.

If today the custom held of considering that everything pertaining to
mankind pertained also to one’s self, we should surely live in a much more
peaceable world. For the presumptuousness of many would abate, and those who
now neglect justice on the pretext of expediency would unlearn the lesson of
injustice at their own expense.

We have felt that perhaps we were not entertaining a foolish hope for our
cause. At all events we are confident that you will all recognize after duly
weighing the facts in the case that the delays to peace can no more be laid to
our charge than can the causes of war; and as hitherto you have been indulgent,
even favorably disposed to us, we feel sure that you will not only remain in
this mind, but be even more friendly to us in the future. Nothing more to be
desired than this can come to men who think that the first condition of
happiness is good deeds; the second, good repute.

Edition: current; Page: [7]

CHAPTER I: By the Law of Nations navigation is free
to all persons whatsoever

My intention is to demonstrate briefly and clearly that the Dutch—that is to
say, the subjects of the United Netherlands—have the right to sail to the East
Indies, as they are now doing, and to engage in trade with the people there. I
shall base my argument on the following most specific and unimpeachable axiom
of the Law of Nations, called a primary rule or first principle, the spirit of
which is self-evident and immutable, to wit: Every nation is free to travel to
every other nation, and to trade with it.

God Himself says this speaking through the voice of nature; and inasmuch as
it is not His will to have Nature supply every place with all the necessaries
of life, He ordains that some nations excel in one art and others in another.
Why is this His will, except it be that He wished human friendships to be
engendered by mutual needs and resources, lest individuals deeming themselves
entirely sufficient unto themselves should for that very reason be rendered
unsociable? So by the decree of divine justice it was brought about that one
people should supply the needs of another, in order, as Pliny the Roman writer
says,
1
that in this way, whatever has been produced anywhere should seem to
have been destined for all. Vergil also sings in this wise:

Those therefore who deny this law, destroy this most praiseworthy bond of
human fellowship, remove the opportunities for doing mutual service, in a word
do violence to Nature herself. For do not the ocean, navigable in every
direction with which God has encompassed all the earth, and the regular and the
occasional winds which blow now from one quarter and now from another, offer
sufficient proof that Nature has given to all peoples a right of access to all
other peoples? Seneca
1
thinks this is Nature’s greatest service, that by the wind she united
the widely scattered peoples, and yet did so distribute all her products over
the earth that commercial intercourse was a necessity to mankind. Therefore
this right belongs equally to all nations. Indeed the most famous jurists
2
extend its application so far as to deny that any state or any ruler
can debar foreigners from having access to their subjects and trading with
them. Hence is derived that law of hospitality which is of the highest
sanctity; hence the complaint of the poet Vergil:

We know that certain wars have arisen over this very matter;
such for example as the war of the Megarians against the
Edition: current; Page: [9] Athenians,
1
and that of the Bolognese against the Venetians.
2
Again, Victoria
3
holds that the Spaniards could have shown just reasons for making war
upon the Aztecs and the Indians in America, more plausible reasons certainly
than were alleged, if they really were prevented from traveling or sojourning
among those peoples, and were denied the right to share in those things which
by the Law of Nations or by Custom are common to all, and finally if they were
debarred from trade.

We read of a similar case in the history of Moses,
4
which we find mentioned also in the writings of Augustine,
5
where the Israelites justly smote with the edge of the sword the
Amorites because they had denied the Israelites an innocent passage through
their territory, a right which according to the Law of Human Society ought in
all justice to have been allowed. In defense of this principle Hercules
attacked the king of Orchomenus in Boeotia; and the Greeks under their leader
Agamemnon waged war against the king of Mysia
6
on the ground that, as Baldus
7
has said, high roads were free
Edition: current; Page: [10] by nature. Again, as we read in Tacitus,
1
the Germans accused the Romans of ‘preventing all intercourse between
them and of closing up to them the rivers and roads, and almost the very air of
heaven’. When in days gone by the Christians made crusades against the
Saracens, no other pretext was so welcome or so plausible as that they were
denied by the infidels free access to the Holy Land.
2

It follows therefore that the Portuguese, even if they had been sovereigns
in those parts to which the Dutch make voyages, would nevertheless be doing
them an injury if they should forbid them access to those places and from
trading there.

Is it not then an incalculably greater injury for nations which desire
reciprocal commercial relations to be debarred therefrom by the acts of those
who are sovereigns neither of the nations interested, nor of the element over
which their connecting high road runs? Is not that the very cause which for the
most part prompts us to execrate robbers and pirates, namely, that they beset
and infest our trade routes?

Edition: current; Page: [11]

CHAPTER II: The Portuguese have no right by title of
discovery to sovereignty over the East Indies to which the Dutch make
voyages

The Portuguese are not sovereigns of those parts of the East Indies to which
the Dutch sail, that is to say, Java, Ceylon,
*
and many of the Moluccas. This I prove by the incontrovertible argument
that no one is sovereign of a thing which he himself has never possessed, and
which no one else has ever held in his name. These islands of which we speak,
now have and always have had their own kings, their own government, their own
laws, and their own legal systems. The inhabitants allow the Portuguese to
trade with them, just as they allow other nations the same privilege.
Therefore, inasmuch as the Portuguese pay tolls, and obtain leave to trade from
the rulers there, they thereby give sufficient proof that they do not go there
as sovereigns but as foreigners. Indeed they only reside there on suffrance.
And although the title to sovereignty is not sufficient, inasmuch as possession
is a prerequisite—for having a thing is quite different from having the right
to acquire it—nevertheless I affirm that in those places the Portuguese have no
title at all to sovereignty which is not denied them by the opinion of learned
men, even of the Spaniards.

First of all, if they say that those lands have come under their
jurisdiction as the reward of discovery, THEY LIE, both in law and in fact. For
to discover a thing is not only to seize it with the eyes but to take real
possession thereof,
Edition: current; Page: [12] as Gordian
1
points out in one of his letters. For that reason the Grammarians
2
give the same signification to the expressions ‘to find’ or ‘to
discover’ and ‘to take possession of’ or ‘to occupy’; and all the Latin with
which I am acquainted tells us that the opposite of ‘to find’
3
is ‘to lose’. However, natural reason itself, the precise words of the
law, and the interpretation of the more learned men
4
all show clearly that the act of discovery is sufficient to give a
clear title of sovereignty only when it is accompanied by actual possession.
And this only applies of course to movables or to such immovables as are
actually inclosed within fixed bounds and guarded.
5
No such claim can be established in the present case, because the
Portuguese maintain no garrisons in those regions. Neither can the Portuguese
by any possible means claim to have discovered India, a country which was
famous centuries and centuries ago! It was already known as early as the time
of the emperor Augustus as the following quotation from Horace shows:

And have not the Romans described for us in the most exact way
the greater part of Ceylon?
7
And as far as the other islands are concerned, not only the neighboring
Edition: current; Page: [13] Persians and Arabs, but even Europeans, particularly
the Venetians, knew them long before the Portuguese did.

But in addition to all this, discovery per se gives no
legal rights over things unless before the alleged discovery they were
res nullius.1
Now these Indians of the East, on the arrival of the Portuguese,
although some of them were idolators, and some Mohammedans, and therefore sunk
in grievous sin, had none the less perfect public and private ownership of
their goods and possessions, from which they could not be dispossessed without
just cause.
2
The Spanish writer Victoria,
3
following other writers of the highest authority, has the most certain
warrant for his conclusion that Christians, whether of the laity or of the
clergy, cannot deprive infidels of their civil power and sovereignty merely on
the ground that they are infidels, unless some other wrong has been done by
them.

For religious belief, as Thomas Aquinas
4
rightly observes, does not do away with either natural or human law
from which sovereignty is derived. Surely it is a heresy to believe that
infidels are not masters of their own property; consequently, to take from them
their possessions on account of their religious belief is no less theft and
robbery than it would be in the case of Christians.

Victoria then is right in saying
5
that the Spaniards have no more legal right over the East Indians
because of their religion, than the East Indians would have had over the
Spaniards if they had happened to be the first foreigners to come to Spain. Nor
are the East Indians stupid and unthinking; on the contrary they are
intelligent and shrewd,
Edition: current; Page: [14] so that a pretext for subduing them on the ground of
their character could not be sustained. Such a pretext on its very face is an
injustice. Plutarch said long ago that it was greed that furnished the pretext
for conquering barbarous countries, and it is not unsuspected that greedy
longing for the property of another often hid itself behind a pretext of
civilizing barbarians. And now that well-known pretext of forcing nations into
a higher state of civilization against their will, the pretext once monopolized
by the Greeks and by Alexander the Great, is considered by all theologians,
especially those of Spain,
1
to be unjust and unholy.

Edition: current; Page: [15]

CHAPTER III: The Portuguese have no right of
sovereignty over the East Indies by virtue of title based on the Papal
Donation

Next, if the partition made by the Pope Alexander VI
*
is to be used by the Portuguese as authority for jurisdiction in the
East Indies, then before all things else two points must be taken into
consideration.

First, did the Pope merely desire to settle the disputes between the
Portuguese and the Spaniards?

This was clearly within his power, inasmuch as he had been chosen to
arbitrate between them, and in fact the kings of both countries had previously
concluded certain treaties with each other on this very matter.
1
Now if this be the case, seeing that the question concerns only the
Portuguese and Spaniards, the decision of the Pope will of course not affect
the other peoples of the world.

Second, did the Pope intend to give to two nations, each one third of the
whole world?

But even if the Pope had intended and had had the power to make such a gift,
still it would not have made the Portuguese sovereigns of those places. For it
is not a donation that makes a sovereign, it is the consequent delivery of a
thing
2
and the subsequent possession thereof.

Now, if any one will scrutinize either divine or human law, not merely with
a view to his own interests, he will
Edition: current; Page: [16] easily apprehend that a donation of this kind,
dealing with the property of others, is of no effect. I shall not enter here
upon any discussion as to the power of the Pope, that is the Bishop of the
Roman Church, nor shall I advance anything but a hypothesis which is accepted
by men of the greatest erudition, who lay the greatest stress on the power of
the Pope, especially the Spaniards, who with their perspicacity easily see that
our Lord Jesus Christ when he said “My kingdom is not of this world” thereby
renounced all earthly power,
1
and that while He was on earth as a man, He certainly did not have
dominion over the whole world, and if He had had such dominion, still by no
arguments could such a right be transferred to Peter, or be transmitted to the
Roman Church by authority of the ‘Vicar of Christ’; indeed, inasmuch as Christ
had many things to which the Pope did not succeed,
2
it has been boldly affirmed—and I shall use the very words of the
writers—that the Pope is neither civil nor temporal Lord of the whole world.
3
On the contrary, even if the Pope did have any such power on earth,
still he would not be right in using it, because he ought to be satisfied with
his own spiritual jurisdiction, and be utterly unable to grant that power to
temporal princes. So then, if the Pope has any power at all, he has it, as they
say, in the spiritual realm only.
4
Therefore he has no authority over infidel nations, for they do not
belong to the Church.
5

It follows therefore according to the opinions of
Edition: current; Page: [17] Cajetan and Victoria and the more authoritative of
the Theologians and writers on Canon Law,
1
that there is no clear title against the East Indians, based either on
the ground that the Pope made an absolute grant of those provinces as if he
were their sovereign, or on the pretext that the East Indians do not recognize
his sovereignty. Indeed, and in truth, it may be affirmed that no such pretext
as that was ever invoked to despoil even the Saracens.

Edition: current; Page: [18]

CHAPTER IV: The Portuguese have no right of
sovereignty over the East Indies by title of war

Since it is clear, (as Victoria also says),
1
from the refutation of any claim to title from the Pope’s Donation,
that the Spaniards when they sailed to those distant lands did not carry with
them any right to occupy them as provinces, only one kind of title remains to
be considered, namely, that based upon war. But even if this title could be
justified, it would not serve to establish sovereignty, except by right of
conquest, that is to say, occupation would be a prerequisite. But the
Portuguese were as far as possible from occupation of those lands. They were
not even at war with most of the peoples whom the Dutch visited. So therefore
no legal claim could be established there by the Portuguese, because even if
they had suffered wrongs from the East Indians, it might reasonably be
considered by the long peace and friendly commercial relations that those
injuries had been forgiven.

Indeed there was no pretext at all for going to war. For those who force war
upon barbarous peoples, as the Spaniards did upon the aborigines of America,
commonly allege one of two pretexts: either that they have been refused the
right to trade, or that the barbarians are unwilling to acknowledge the
doctrines of the True Faith. But as the Portuguese actually obtained from the
East Indians the right to trade,
2
they have, on that score at least, no
Edition: current; Page: [19] grounds of complaint. Nor is there any better
justification for the other pretext than the one alleged by the Greeks against
the barbarians, to which Boëthius makes the following allusion:

Moreover the verdict of Thomas Aquinas, of the Council of Toledo, of
Gregory, and of nearly all theologians, canonists, and jurists, is as follows:
2
However persuasively and sufficiently the True Faith has been preached
to the heathen—former subjects of Christian princes or apostates are quite
another question—if they are unwilling to heed it, that is not sufficient cause
to justify war upon them, or to despoil them of their goods.
3

It is worth while on this point to quote the actual words of Cajetan:
4
‘There are some infidels who are neither in law nor in fact under the
temporal jurisdiction of Christian princes; just as there were pagans who were
never subjects of the Roman Empire, and yet who inhabit lands where the name of
Christ was never heard. Now their rulers, though heathen, are legitimate
rulers, whether the people live under a monarchical or a democratic régime.
They are not to be deprived of sovereignty over their possessions
Edition: current; Page: [20] because of their unbelief, since sovereignty is a
matter of positive law, and unbelief is a matter of divine law, which cannot
annual positive law, as has been argued above. In fact I know of no law against
such unbelievers as regards their temporal possessions. Against them no King,
no Emperor, not even the Roman Church, can declare war for the purpose of
occupying their lands, or of subjecting them to temporal sway. For there is no
just cause for war, since Jesus Christ the King of Kings, to whom all power was
given in heaven and on earth, sent out for the conquest of the world not armed
soldiers, but holy disciples, “as sheep in the midst of wolves.” Nor do I read
in the Old Testament, when possession had to be obtained by force of arms, that
the Israelites waged war on any heathen land because of the unbelief of its
inhabitants; but it was because the heathen refused them the right of innocent
passage, or attacked them, as the Midianites did; or it was to recover the
possessions which had been bestowed upon them by divine bounty. Wherefore we
should be most miserable sinners if we should attempt to extend the religion of
Jesus Christ by such means. Nor should we be their lawful rulers, but, on the
contrary, we should be committing great robberies, and be compelled to make
restitution as unjust conquerors and invaders. There must be sent to them as
preachers, good men to convert them to God by their teaching and example; not
men who will oppress them, despoil them, subdue and proselytize them, and “make
them twofold more the children of hell than themselves,”
*
after the manner of the Pharisees’.

Indeed I have often heard that it has been decreed by the Council of Spain,
and by the Churchmen, especially the Dominicans, that the Americans (Aztecs and
Indians) should be converted to the Faith by the preaching of the Word alone,
and not by war, and even that their liberty of
Edition: current; Page: [21] which they had been robbed in the name of religion
should be restored. This policy is said to have received the approval of Pope
Paul III, and of Emperor Charles V, King of the Spains.

I pass over the fact that the Portuguese in most places do not further the
extension of the faith, or indeed, pay any attention to it at all, since they
are alive only to the acquisition of wealth. Nay, the very thing that is true
of them, is the very thing which has been written of the Spaniards in America
by a Spaniard, namely, that nothing is heard of miracles or wonders or examples
of devout and religious life such as might convert others to the same faith,
but on the other hand no end of scandals, of crimes, of impious deeds.

Wherefore, since both possession and a title of possession are lacking, and
since the property and the sovereignty of the East Indies ought not to be
considered as if they had previously been res nullius, and
since, as they belong to the East Indians, they could not have been acquired
legally by other persons, it follows that the East Indian nations in question
are not the chattels of the Portuguese, but are free men and sui juris. This is not denied even by the Spanish jurists
themselves.
1

Edition: current; Page: [22]

CHAPTER V: Neither the Indian Ocean nor the right
of navigation thereon belongs to the Portuguese by title of occupation

If therefore the Portuguese have acquired no legal right over the nations of
the East Indies, and their territory and sovereignty, let us consider whether
they have been able to obtain exclusive jurisdiction over the sea and its
navigation or over trade. Let us first consider the case of the sea.

Now, in the legal phraseology of the Law of Nations, the sea is called
indifferently the property of no one (res nullius), or a
common possession (res communis), or public property (res publica). It will be most convenient to explain the
signification of these terms if we follow the practice of all the poets since
Hesiod, of the philosophers and jurists of the past, and distinguish certain
epochs, the divisions of which are marked off perhaps not so much by intervals
of time as by obvious logic and essential character. And we ought not to be
criticised if in our explanation of a law deriving from nature, we use the
authority and definition of those whose natural judgment admittedly is held in
the highest esteem.

It is therefore necessary to explain that in the earliest stages of human
existence both sovereignty and common possession had meanings other than those
which they bear at the present time.
1
For nowadays sovereignty means a particular kind of proprietorship,
such in fact that it absolutely excludes like possession by any one else. On
the other hand, we call a thing ‘common’ when its ownership
Edition: current; Page: [23] or possession is held by several persons jointly
according to a kind of partnership or mutual agreement from which all other
persons are excluded. Poverty of language compels the use of the same words for
things that are not the same. And so because of a certain similarity and
likeness, our modern nomenclature is applied to that state of primitive law.
Now, in ancient times, ‘common’ meant simply the opposite of ‘particular’; and
‘sovereignty’ or ‘ownership’, meant the privilege of lawfully using common
property. This seemed to the Scholastics
1
to be a use in fact but not in law, because what now in law is called
use, is a particular right, or if I may use their phraseology, is, in respect
to other persons, a privative right.

In the primitive law of nations, which is sometimes called Natural Law, and
which the poets sometimes portray as having existed in a Golden Age, and
sometimes in the reign of Saturn or of Justice, there was no particular right.
As Cicero says: ‘But nothing is by nature private property’. And Horace:
2
‘For nature has decreed to be the master of private soil neither him,
nor me, nor anyone else’. For nature knows no sovereigns. Therefore in this
sense we say that in those ancient times all things were held in common,
meaning what the poets do when they say that primitive men acquired everything
in common, and that Justice maintained a community of goods by means of an
inviolable compact. And to make this clearer, they say that in those primitive
times the fields were not delimited by boundary lines, and that there was no
commercial intercourse. Avienus says:
3
‘It seemed that all lands without distinction were common to all’.

The word ‘seemed’ is rightly added, owing to the changed meaning of the
words, as we have noted above.
Edition: current; Page: [24] But that kind of common possession relates to use, as
is seen from a quotation from Seneca:
1

“Every path was free,

All things were used in common.”

According to his reasoning there was a kind of sovereignty, but
it was universal and unlimited. For God had not given all things to this
individual or to that, but to the entire human race, and thus a number of
persons, as it were en masse, were not debarred from being
substantially sovereigns or owners of the same thing, which is quite
contradictory to our modern meaning of sovereignty. For it now implies
particular or private ownership, a thing which no one then had. Avienus has
said very pertinently:
2
‘All things belonged to him who had possession of them’.

It seems certain that the transition to the present distinction of
ownerships did not come violently, but gradually, nature herself pointing out
the way. For since there are some things, the use of which consists in their
being used up, either because having become part of the very substance of the
user they can never be used again, or because by use they become less fit for
future use, it has become apparent, especially in dealing with the first
category, such things as food and drink for example, that a certain kind of
ownership is inseparable from use.
3
For ‘own’ implies that a thing belongs to some one person, in such a
way that it cannot belong to any other person. By the process of reasoning this
was next extended to things of the second category, such as clothes and
movables and some living things.

When that had come about, not even immovables, such,
Edition: current; Page: [25] for instance, as fields, could remain unapportioned.
For although their use does not consist merely in consumption, nevertheless it
is bound up with subsequent consumption, as fields and plants are used to get
food, and pastures to get clothing. There is, however, not enough fixed
property to satisfy the use of everybody indiscriminately.

When property or ownership was invented, the law of property was established
to imitate nature. For as that use began in connection with bodily needs, from
which as we have said property first arose, so by a similar connection it was
decided that things were the property of individuals. This is called
‘occupation’, a word most appropriate to those things which in former times had
been held in common. It is this to which Seneca alludes in his tragedy
Thyestes,

And in one of his philosophical writings he also says:
2
‘The equestrian rows of seats belong to all the equites; nevertheless,
the seat of which I have taken possession is my own private place’. Further,
Quintilian remarks
3
that a thing which is created for all is the reward of industry, and
Cicero says
4
that things which have been occupied for a long time become the
property of those who originally found them unoccupied.

This occupation or possession, however, in the case of things which resist
seizure, like wild animals for example, must be uninterrupted or perpetually
maintained, but in the case of other things it is sufficient if after physical
possession is once taken the intention to possess is maintained. Possession of
movables implies seizure, and possession of
Edition: current; Page: [26] immovables either the erection of buildings or some
determination of boundaries, such as fencing in. Hence Hermogenianus, in
speaking of separate ownerships, adds the boundaries set to the fields and the
buildings thereon constructed.
1
This state of things is described thus by the poets Vergil and
Ovid:

In still another place, as Hermogenianus points out, Ovid
praises commerce, for the sake of which:
4

‘Ships in triumph sail the unknown seas’.

At the same time, however, states began to be established, and
so two categories were made of the things which had been wrested away from
early ownership in common. For some things were public, that is, were the
property of the people (which is the real meaning of that expression), while
other things were private, that is, were the property of individuals.
Ownership, however, both public and private, arises in the same way. On this
point Seneca says:
5
‘We speak in general of the land of the Athenians or the Campanians. It
is the same land which again by means of private boundaries is divided among
individual owners’.
Edition: current; Page: [27] ‘For each nation’, Seneca says in another place,
‘made its territories into separate kingdoms and built new cities’.
1
Thus Cicero says: “On this principle the lands of Arpinum are said to
belong to the Arpinates, the Tusculan lands to the Tusculans; and similar is
the assignment of private property. Therefore, inasmuch as in each case some of
those things which by nature had been common property became the property of
individuals, each one should retain possession of that which has fallen to his
lot.”
2
On the other hand Thucydides
3
calls the land which in the division falls to no nation,
ἀόριστος, that is,
undefined, and undetermined by boundaries.
4

Two conclusions may be drawn from what has thus far been said. The first is,
that that which cannot be occupied, or which never has been occupied, cannot be
the property of any one, because all property has arisen from occupation. The
second is, that all that which has been so constituted by nature that although
serving some one person it still suffices for the common use of all other
persons, is today and ought in perpetuity to remain in the same condition as
when it was first created by nature. This is what Cicero meant when he wrote:
“This then is the most comprehensive bond that unites together men as men and
all to all; and under it the common right to all things that nature has
produced for the common use of man is to be maintained.”
5
All things which can be used without loss to any one else come under
this category. Hence, says Cicero, comes the well known prohibition:
6
‘Deny no one the water that flows by’. For running water considered as
such and not as a
Edition: current; Page: [28] stream, is classed by the jurists among the things
common to all mankind; as is done also by Ovid:
1
‘Why do you deny me water? Its use is free to all. Nature has made
neither sun nor air nor waves private property; they are public gifts’.

He says that these things are not by nature private possession, but that, as
Ulpian claims,
2
they are by nature things open to the use of all, both because in the
first place they were produced by nature, and have never yet come under the
sovereignty of any one, as Neratius says;
3
and in the second place because, as Cicero says, they seem to have been
created by nature for common use. But the poet uses ‘public’, in its usual
meaning, not of those things which belong to any one people, but to human
society as a whole; that is to say, things which are called ‘public’ are,
according to the Laws of the law of nations, the common property of all, and
the private property of none.

The air belongs to this class of things for two reasons. First, it is not
susceptible of occupation; and second its common use is destined for all men.
For the same reasons the sea is common to all, because it is so limitless that
it cannot become a possession of any one, and because it is adapted for the use
of all, whether we consider it from the point of view of navigation or of
fisheries. Now, the same right which applies to the sea applies also to the
things which the sea has carried away from other uses and made its own, such
for example as the sands of the sea, of which the portion adjoining the land is
called the coast or shore.
4
Cicero therefore argues correctly:
5
‘What is so common as
Edition: current; Page: [29] the sea for those who are being tossed upon it, the
shore for those who have been cast thereon’. Vergil also says that the air, the
sea, and the shore are open to all men.

These things therefore are what the Romans call ‘common’ to all men by
natural law,
1
or as we have said, ‘public’ according to the law of nations; and
indeed they call their use sometimes common, sometimes public. Nevertheless,
although those things are with reason said to be res
nullius, so far as private ownership is concerned, still they differ very
much from those things which, though also res nullius,
have not been marked out for common use, such for example as wild animals,
fish, and birds. For if any one seizes those things and assumes possession of
them, they can become objects of private ownership, but the things in the
former category by the consensus of opinion of all mankind are forever exempt
from such private ownership on account of their susceptibility to universal
use; and as they belong to all they cannot be taken away from all by any one
person any more than what is mine can be taken away from me by you. And Cicero
says that one of the first gifts of Justice is the use of common property for
common benefit. The Scholastics would define one of these categories as common
in an affirmative, the other in a privative sense. This distinction is not only
familiar to jurists, but it also expresses the popular belief. In Athenaeus for
instance the host is made to say that the sea is the common property of all,
but that fish are the private property of him who catches them. And in Plautus’
Rudens when the slave says:
2
‘The sea is certainly common to all persons’, the fisherman agrees; but
when the slave adds: ‘Then what is found in the common sea is common property’,
he rightly objects, saying: ‘But what my net and hooks have taken, is
absolutely my own’.

Edition: current; Page: [30]

Therefore the sea can in no way become the private property of any one,
because nature not only allows but enjoins its common use.
1
Neither can the shore become the private property of any one. The
following qualification, however, must be made. If any part of these things is
by nature susceptible of occupation, it may become the property of the one who
occupies it only so far as such occupation does not affect its common use. This
qualification is deservedly recognized. For in such a case both conditions
vanish through which it might eventuate, as we have said, that all of it would
pass into private ownership.

Since therefore, to cite Pomponius, building is one kind of occupation, it
is permissible to build upon the shore, if this can be done without
inconvenience to other people;
2
that is to say (I here follow Scaevola) if such building can be done
without hindrance to public or common use of the shore. And whoever shall have
constructed a building under the aforesaid circumstances will become the owner
of the ground upon which said building is; because this ground is neither the
property of any one else, nor is it necessary to common use. It becomes
therefore the property of the occupier, but his ownership lasts no longer than
his occupation lasts, inasmuch as the sea seems by nature to resist ownership.
For just as a wild animal, if it shall have escaped and thus recovered its
natural liberty, is no longer the property of its captor, so also the sea may
recover its possession of the shore.

We have now shown that whatever by occupation can become private property
can also become public property, that is, the private property of a whole
nation.
3
And so Celsus considered the shore included within the limits of the
Roman Empire to be the property of the Roman people.
Edition: current; Page: [31] There is not therefore the least reason for surprise
that the Roman people through their emperors or praetors was able to grant to
its subjects the right of occupying the shore. This public occupation, however,
no less than private occupation, was subject to the restriction that it should
not infringe on international rights. Therefore the Roman people could not
forbid any one from having access to the seashore,
1
and from spreading his fishing nets there to dry, and from doing other
things which all men long ago decided were always permissible.

The nature of the sea, however, differs from that of the shore, because the
sea, except for a very restricted space, can neither easily be built upon, nor
inclosed; if the contrary were true yet this could hardly happen without
hindrance to the general use. Nevertheless, if any small portion of the sea can
be thus occupied, the occupation is recognized. The famous hyperbole of Horace
must be quoted here: “The fishes note the narrowing of the waters by piers of
rock laid in their depths.”
2

Now Celsus holds that piles driven into the sea belong to the man who drove
them.
3
But such an act is not permissible if the use of the sea be thereby
impaired. And Ulpian says that whoever builds a breakwater must see to it that
it is not prejudicial to the interests of any one; for if this construction is
likely to work an injury to any one, the injunction ‘Nothing may be built on
public property’ would apply. Labeo, however, holds that in case any such
construction should be made in the sea, the following injunction is to be
enforced: ‘Nothing may be built in the sea whereby the harbor, the roadstead,
or the channel be rendered less safe for navigation’.
4

Edition: current; Page: [32]

Now the same principle which applies to navigation applies also to fishing,
namely, that it remains free and open to all. Nevertheless there shall be no
prejudice if any one shall by fencing off with stakes an inlet of the sea make
a fish pond for himself, and so establish a private preserve. Thus Lucullus
once brought the water of the sea to his villa by cutting a tunnel through a
mountain near Naples.
1
I suspect too that the seawater reservoirs for fish mentioned by Varro
and Columella were of this sort. And Martial had the same thing in mind when he
says of the Formian villa of Apollinaris:
2
‘Whenever Nereus feels the power of Aeolus, the table safe in its own
resources laughs at the gale’. Ambrose also has something to say on the same
subject:
3
‘You bring the very sea into your estates that you may not lack for
fish’. In the light of all this the meaning of Paulus is clear when he says
4
that if any one has a private right over the sea, the rule
uti possidetis applies. This rule however is applicable
only to private suits, and not to public ones, among which are also to be
included those suits which can be brought under the common law of nations. But
here the question is one which concerns the right of use arising in a private
suit, but not in a public or common one. For according to the authority of
Marcianus whatever has been occupied and can be occupied
5
is no longer subject to the law of nations as the sea is. Let us take
an example. If any one had prevented Lucullus or Apollinaris from fishing in
the private fish ponds which they had made by inclosing a small portion of the
sea, according to the opinion of Paulus they would have the right of bringing
Edition: current; Page: [33] an injunction, not merely an action for damages based
on private ownership.
1

Indeed, if I shall have staked off such an inclosure in an inlet of the sea,
just as in a branch of a river, and have fished there, especially if by doing
so continuously for many years I shall have given proof of my intention to
establish private ownership, I shall certainly prevent any one else from
enjoying the same rights. I gather from Marcianus that this case is identical
with that of the ownership of a lake, and it is true however long occupation
lasts, as we have said above about the shore. But outside of an inlet this will
not hold, for then the common use of the sea might be hindered.
2

Therefore if any one is prevented from fishing in front of my town house or
country seat, it is a usurpation, but an illegal one, although Ulpian, who
rather makes light of this usurpation, does say that if any one is so prevented
he can bring an action for damages.
3
The Emperor Leo, whose laws we do not use, contrary to the intent of
the law, changed this, and declared that the entrances, or vestibules as it
were, to the sea, were the private property of those who inhabited the shore,
and that they had the right of fishing there.
4
However he attached this condition, that the place should be occupied
by certain jetty or pile constructions, such as the Greeks call
ἐποχαί, thinking
doubtless that no one who was himself allowed to fish anywhere in the sea would
grudge any one else a small portion of it. To be sure it would be an
intolerable outrage for any one to snatch away, even if he could do so, from
public use a large area of the sea; an act which is justly reprehended by the
Holy Man,
5
who says: ‘The lords of the earth claim for
Edition: current; Page: [34] themselves a wide expanse of sea by jus mancipii, and they regard the right of fishing as a
servitude over which their right is the same as that over their slaves. That
gulf, says one, belongs to me, and that gulf to some one else. They divide the
very elements among themselves, these great men’!

Therefore the sea is one of those things which is not an article of
merchandise,
1
and which cannot become private property. Hence it follows, to speak
strictly, that no part of the sea can be considered as the territory of any
people whatsoever. Placentinus seems to have recognized this when he said: ‘The
sea is a thing so clearly common to all, that it cannot be the property of any
one save God alone’. Johannes Faber
2
also asserts that the sea has been left sui juris,
and remains in the primitive condition where all things were common. If it were
otherwise there would be no difference between the things which are ‘common to
all’, and those which are strictly termed ‘public’; no difference, that is,
between the sea and a river. A nation can take possession of a river, as it is
inclosed within their boundaries, with the sea, they cannot do so.

Now, public territory arises out of the occupation of nations, just as
private property arises out of the occupation of individuals. This is
recognized by Celsus, who has drawn a sharp distinction between the shores of
the sea,
3
which the Roman people could occupy in such a way that its common use
was not harmed, and the sea itself, which retained its primitive nature. In
fact no law intimates a contrary view.
4
Such laws as are cited by writers who are of
Edition: current; Page: [35] the contrary opinion apply either to islands, which
evidently could be occupied, or to harbors, which are not ‘common’, but
‘public’, that is, ‘national’.

Now those who say that a certain sea belonged to the Roman people explain
their statement to mean that the right of the Romans did not extend beyond
protection and jurisdiction; this right they distinguish from ownership.
Perchance they do not pay sufficient attention to the fact that although the
Roman People were able to maintain fleets for the protection of navigation and
to punish pirates captured on the sea, it was not done by private right, but by
the common right which other free peoples also enjoy on the sea. We recognize,
however, that certain peoples have agreed that pirates captured in this or in
that part of the sea should come under the jurisdiction of this state or of
that, and further that certain convenient limits of distinct jurisdiction have
been apportioned on the sea. Now, this agreement does bind those who are
parties to it,
1
but it has no binding force on other nations, nor does it make the
delimited area of the sea the private property of any one. It merely
constitutes a personal right between contracting parties.

This distinction so conformable to natural reason is also confirmed by a
reply once made by Ulpian. Upon being asked whether the owner of two maritime
estates could on selling either of them impose on it such a servitude as the
prohibition of fishing in a particular part of the sea, he replied that the
thing in question, evidently the sea, could not be subjected to a servitude,
because it was by nature open to all persons; but that since a contract made in
good faith demands that the condition of a sale be respected, the present
possessors and those who succeed to
Edition: current; Page: [36] their rights were bound to observe that condition. It
is true that the jurist is speaking of private estates and of private law, but
in speaking here of the territory of peoples and of public law the same
reasoning applies, because from the point of view of the whole human race
peoples are treated as individuals.

Similarly, revenues levied on maritime fisheries are held to belong to the
Crown, but they do not bind the sea itself or the fisheries, but only the
persons engaged in fishing.
1
Wherefore subjects, for whom a state or a ruler is by common consent
competent to make laws, will perhaps be compelled to bear such charges, but so
far as other persons are concerned the right of fishing ought everywhere to be
exempt from tolls, lest a servitude be imposed upon the sea, which is not
susceptible to a servitude.

The case of the sea is not the same as that of a river,
2
for as a river is the property of a nation, the right to fish in it can
be passed or leased by the nation or by the ruler, in such a way (and the like
is true with the ancients) that the lessee enjoys the operation of the
injunction de loco publico fruendo by virtue of the clause
‘He who has the right to lease has leased the exclusive right of enjoyment’.
3
Such a condition cannot arise in respect to the sea. Finally those who
count fishing among the properties of the Crown have not examined carefully
enough the very passage which they cite to prove their contention, as Isernia
*
and Alvotus
†
have noticed.

It has therefore been demonstrated
4
that neither a nation nor an individual can establish any right of
private ownership
Edition: current; Page: [37] over the sea itself (I except inlets of the sea),
inasmuch as its occupation is not permissible either by nature or on grounds of
public utility. The discussion of this matter has been taken up for this
reason, namely, that it may be seen that the Portuguese have not established
private ownership over the sea by which people go to the East Indies. For the
two reasons that stand in the way of ownership are in this case infinitely more
powerful than in all others. That which in other cases seems difficult, is here
absolutely impossible; and what in other cases we recognize as unjust is here
most barbarous and inhuman.

The question at issue then is not one that concerns an INNER SEA, one which
is surrounded on all sides by the land and at some places does not even exceed
a river in breadth, although it is well known that the Roman jurists cited such
an inner sea in their famous opinions condemning private avarice. No! the
question at issue is the OUTER SEA, the OCEAN, that expanse of water which
antiquity describes as the immense, the infinite, bounded only by the heavens,
parent of all things; the ocean which the ancients believed was perpetually
supplied with water not only by fountains, rivers, and seas, but by the clouds,
and by the very stars of heaven themselves; the ocean which, although
surrounding this earth, the home of the human race, with the ebb and flow of
its tides, can be neither seized nor inclosed; nay, which rather possesses the
earth than is by it possessed.

Further, the question at issue does not concern a gulf or a strait in this
ocean, nor even all the expanse of sea which is visible from the shore. [But
consider this!!] The Portuguese claim as their own the whole expanse of the sea
which separates two parts of the world so far distant the one from the other,
that in all the preceding centuries neither one has so much as heard of the
other. Indeed, if we take into account the share of the Spaniards, whose claim
Edition: current; Page: [38] is the same as that of the Portuguese, only a little
less than the whole ocean is found to be subject to two nations, while all the
rest of the peoples in the world are restricted to the narrow bounds of the
northern seas. Nature was greatly deceived if when she spread the sea around
all peoples she believed that it would also be adequate for the use of them
all. If in a thing so vast as the sea a man were to reserve to himself from
general use nothing more than mere sovereignty, still he would be considered a
seeker after unreasonable power. If a man were to enjoin other people from
fishing, he would not escape the reproach of monstrous greed. But the man who
even prevents navigation, a thing which means no loss to himself, what are we
to say of him?

If any person should prevent any other person from taking fire from his fire
or a light from his torch, I should accuse him of violating the law of human
society, because that is the essence of its very nature, as Ennius has
said:

Why then, when it can be done without any prejudice to his own interests,
will not one person share with another things which are useful to the
recipient, and no loss to the giver?
2
These are services which the ancient philosophers
3
thought ought to be rendered not only to foreigners but even rendered
for nothing. But the same act which when private possessions are in question is
jealousy can be nothing but cruelty when a common possession is in question.
For it is most outrageous for you to appropriate a thing, which both by
ordinance of nature and by common consent is as much mine as yours, so
exclusively that you will not grant me a right of use in it which leaves it no
less yours than it was before.

Edition: current; Page: [39]

Nevertheless, even those who lay burdens upon foreigners, or appropriate
things common to all, rely upon a possession which is to some extent real. For
since original occupation created private property, therefore detention of a
thing, though unjust, gives an appearance of ownership. But have the Portuguese
completely covered the ocean, as we are wont to do on land, by laying out
estates on it in such a way that they have the right to exclude from that ocean
whom they will? Not at all! On the contrary, they are so far from having done
so, that when they divide up the world to the disadvantage of other nations,
they cannot even defend their action by showing any boundaries either natural
or artificial, but are compelled to fall back upon some imaginary line. Indeed,
if that were a recognized method, and such a delimitation of boundaries were
sufficient to make possession valid, our geometers long since would have got
possession of the face of the earth, our astronomers of the very skies.

But where in this case is that corporal possession or physical
appropriation, without which no ownerships arise? There appears to be nothing
truer than what our learned jurists have enunciated, namely,
1
that since the sea is just as insusceptible of physical appropriation
as the air, it cannot be attached to the possessions of any nation.

But if the Portuguese call occupying the sea merely to
have sailed over it before other people, and to have, as it were, opened the
way, could anything in the world be more ridiculous? For, as there is no part
of the sea on which some person has not already sailed, it will necessarily
follow that every route of navigation is occupied by some one. Therefore we
peoples of today are all absolutely excluded. Why will not those men who have
circumnavigated the globe be justified in saying that they have acquired for
themselves the possession of the whole ocean! But there
Edition: current; Page: [40] is not a single person in the world who does not know
that a ship sailing through the sea leaves behind it no more legal right than
it does a track. And as for the assumption of the Portuguese that no one has
sailed that ocean before themselves, that is anything but true. For a great
part of that sea near Morocco, which is in dispute, had already been navigated
long before, and the sea as far east as the Arabian gulf has been made famous
by the victories of Alexander the Great, as both Pliny and Mela tell us.
1

There is also much to substantiate the belief that the inhabitants of Cadiz
were well acquainted long ago with this route, because when Gaius Caesar,
*
the son of Augustus, held command in the Arabian gulf, pieces were
found of shipwrecks recognized as Spanish. Caelius Antipater also has told us
in his writings that he himself saw a Spaniard who had sailed from Spain to
Ethiopia on a commercial voyage. Also the Arabians knew those seas, if the
testimony of Cornelius Nepos is to be believed, because he says that in his own
day a certain Eudoxus, fleeing from Lathyrus, king of Alexandria, sailed from
the Arabian gulf and finally reached Cadiz. However, by far the most famous
example is that of the Carthaginians. Those most famous mariners were well
acquainted with that sea, because Hanno, when Carthage was at the height of her
power, sailing from Cadiz to the farthest confines of Arabia, and doubling the
promontory now known as the Cape of Good Hope (the ancient name seems to have
been Hyperion Ceras), described in a book the entire route he had taken, the
appearance of the coasts, and the location of the islands, declaring that at
the farthest point he reached the sea had not yet given out but his provisions
had.

Pliny’s description of the route to the East,
2
the embassies
Edition: current; Page: [41] from the Indies to Augustus, and those from Ceylon to
the emperor Claudius, and finally the accounts of the deeds of Trajan, and the
writings of Ptolemaeus, all make it quite clear that in the days of Rome’s
greatest splendor voyages were made regularly from the Arabian gulf to India,
to the islands of the Indian ocean, and even so far as to the golden
Chersonesus, which many people think was Japan. Strabo says
1
that in his own time a fleet of Alexandrian merchantmen set sail from
the Arabian gulf for the distant lands of Ethiopia and India, although few
ships had ever before attempted that voyage. The Roman people had a large
revenue from the East. Pliny says
2
that cohorts of archers were carried on the boats engaged in trade as
protection against pirates; he states also that every year India alone paid
into the Roman imperial treasury 500,000 sesterces,
*
or 1,000,000 sesterces if the revenues from Arabia and China be added;
further, that the merchandise brought from the East sold for one hundred times
its original cost.

These examples cited from ancient times are sufficient proof that the
Portuguese were not the first in that part of the world. Long before they ever
came, every single part of that ocean had been long since explored. For how
possibly could the Moors, the Ethiopians, the Arabians, the Persians, the
peoples of India, have remained in ignorance of that part of the sea adjacent
to their coasts!

Therefore they lie, who today boast that they discovered that sea.

Well then, some one will say, does it seem to be a matter of little moment
that the Portuguese were the first to restore a navigation interrupted perhaps
for many centuries, and unknown—as cannot be denied—at least to the nations of
Europe, at great labor and cost and danger to themselves?
Edition: current; Page: [42] On the contrary, if they had laid weight upon the
fact that they were pointing out to all what they alone had rediscovered, there
is no one so lacking in sense that he would not acknowledge the greatest
obligation to them. For the Portuguese will have earned the same thanks,
praise, and immortal glory with which all discoverers of great things have been
content, whenever they have striven to benefit not themselves but the whole
human race. But if the Portuguese had before their eyes only their own
financial gain, surely their profit, which is always the largest for those
first in a new field of enterprise, ought to have satisfied them. For we know
that their first voyages returned a profit sometimes of forty times the
original investment, and sometimes even more. And by this overseas trade it has
come about that a people, previously for a long time poor, have leaped suddenly
into the possession of great riches, and have surrounded themselves with such
outward signs of luxurious magnificence as scarcely the most prosperous nations
have been able to display at the height of their fortunes.

But if these Portuguese have led the way in this matter in order that no one
may follow them, then they do not deserve any thanks, inasmuch as they have
considered only their own profit. Nor can they call it their profit, because
they are taking the profit of some one else. For it is not at all demonstrable
that, if the Portuguese had not gone to the East Indies, no one else would have
gone. For the times were coming on apace in which along with other sciences the
geographical locations of seas and lands were being better known every day. The
reports of the expeditions of the ancients mentioned above had aroused people,
and even if all foreign shores had not been laid open at a single stroke as it
were, yet they would have been brought to light gradually by sailing voyages,
each new discovery pointing the way to the next. And so there would finally
Edition: current; Page: [43] have been accomplished what the Portuguese showed
could be done, because there were many nations with no less ardor than theirs
to engage in commerce and to learn of foreign things. The Venetians, who
already knew much about India, were ready to push their knowledge farther; the
indefatigable zeal of the French of Brittany, and the boldness of the English
would not have failed to make such an attempt; indeed the Dutch themselves have
embarked upon much more desperate enterprises.

Therefore the Portuguese have neither just reason nor respectable authority
to support their position, for all those persons who assume that the sea can be
subjected to the sovereignty of any one assign it to him who holds in his power
the nearest ports and the circumjacent shores.
1
But in all that great extent of coast line reaching to the East Indies
the Portuguese have nothing which they can call their own except a few
fortified posts.

And then even if a man were to have dominion over the sea, still he could
not take away anything from its common use, just as the Roman people could not
prevent any one from doing on the shores of their dominions all those things
which were permitted by the law of nations.
2
And if it were possible to prohibit any of those things, say for
example, fishing, for in a way it can be maintained that fish are exhaustible,
still it would not be possible to prohibit navigation, for the sea is not
exhausted by that use.

The most conclusive argument on this question by far however is the one that
we have already brought forward based on the opinions of eminent jurists,
namely, that even over land which had been converted into private property
either by states or individuals, unarmed and innocent passage is not justly to
be denied to persons of any country, exactly as the right to drink from a river
is not to be
Edition: current; Page: [44] denied. The reason is clear, because, inasmuch as one
and the same thing is susceptible by nature to different uses, the nations seem
on the one hand to have apportioned among themselves that use which cannot be
maintained conveniently apart from private ownership; but on the other hand to
have reserved that use through the exercise of which the condition of the owner
would not be impaired.

It is clear therefore to every one that he who prevents another from
navigating the sea has no support in law. Ulpian has said
1
that he was even bound to pay damages, and other jurists have thought
that the injunction utile prohibito could also be brought
against him.
2

Finally, the relief prayed for by the Dutch rests upon a common right, since
it is universally admitted that navigation on the sea is open to any one, even
if permission is not obtained from any ruler. And this is specificially
expressed in the Spanish laws.
3

Edition: current; Page: [45]

CHAPTER VI: Neither the Sea nor the right of
navigation thereon belongs to the Portuguese by virtue of title based on the
Papal Donation

The Donation of Pope Alexander, inasmuch as the title based on discovery is
seen to be deficient, may next be invoked by the Portuguese to justify their
exclusive appropriation of the sea and the right of navigation thereon. But
from what has been said above, that Donation is clearly convicted of being an
act of empty ostentation. For a Donation has no effect on things outside the
realm of trade. Wherefore since neither the sea nor the right of navigating it
can become the private property of any man, it follows that it could not have
been given by the Pope, nor accepted by the Portuguese. Besides, as has been
mentioned above, following the opinion of all men of sound judgment, it is
sufficiently well recognized that the Pope is not the temporal lord of the
earth, and certainly not of the sea. Even if it be granted for the sake of
argument that such were the case, still a right attaching to the Pontificate
ought not to be transferred wholly or in part to any king or nation. Similarly
no emperor could convert to his own uses or alienate at his own pleasure the
provinces of his empire.
1

Now, inasmuch as no one concedes to the Pope in temporal matters a
jus disponendi, except perhaps in so far as it is demanded
by the necessity of spiritual matters, and inasmuch as the things now under
discussion, namely, the sea and the right of navigating it, are concerned only
with money and profits, not with piety, surely every one with
Edition: current; Page: [46] any brains at all will agree that the Pope has no
jurisdiction here. What of the fact that not even rulers, that is to say,
temporal lords, can prohibit any one from navigation, since if they have any
right at all upon the sea it is merely one of jurisdiction and protection! It
is also a fact universally recognized that the Pope has no authority to commit
acts repugnant to the law of nature.
1
But it is repugnant to the law of nature, as we have already proved
beyond a doubt, for any one to have as his own private property either the sea
or its use. Finally, since the Pope is wholly unable to deprive any one of his
own rights, what defense will there be for that Donation of his, if by a word
he intended to exclude so many innocent, uncondemned, and guiltless nations
from a right which belongs no less to them than to the Spaniards?

Therefore, either it must be affirmed that a pronunciamento of this sort has
no force, or, as is no less credible, that it was the desire of the Pope to
intercede in the quarrel between the Spaniards and the Portuguese, and that he
had no concomitant intention of violating the rights of others.

Edition: current; Page: [47]

CHAPTER VII: Neither the Sea nor the right of
navigation thereon belongs to the Portuguese by title of prescription or
custom

The last defense of injustice is usually a claim or plea based on
prescription or on custom. To this defense therefore the Portuguese have
resorted. But the best established reasoning of the law precludes them from
enjoying the protection of either plea.

Prescription is a matter of municipal law; hence it cannot be applied as
between kings, or as between free and independent nations.
1
It has even less standing when it is in conflict with that which is
always stronger than the municipal law, namely, the law of nature or nations.
Nay, even municipal law itself prevents prescription in this case.
2
For it is impossible to acquire by usucaption or prescription things
which cannot become property, that is, which are not susceptible of possession
or of quasi-possession, and which cannot be alienated. All of which is true
with respect to the sea and its use.

And since public things, that is, things which are the property of a nation,
cannot be acquired by mere efflux of time, either because of their nature, or
because of the prerogatives of those against whom such prescription would act,
is it not vastly more just that the benefits accruing from the enjoyment of
common things should be given to the entire human race than to one nation
alone? On this point
Edition: current; Page: [48] Papinian has said:
1
‘Prescription raised by long possession is not customarily recognized
as valid in the acquisition of places known to international law as “public” ’.
As an example, to illustrate this point, he cites a shore some part of which
had been occupied by means of a building constructed on it. But if this
building should be destroyed, and some one else later should construct a
building on the same spot, no exception could be taken to it. Then he
illustrates the same point by the analogous case of a res
publica. If, for example, any one has fished for many years in a branch of
a river, and has then stopped fishing there, after that he cannot prevent any
one else from enjoying the same right that he had.

Wherefore it appears that Angeli
2
and his followers who have said that the Venetians and Genoese were
able to acquire by prescription certain specific rights in the gulfs of the sea
adjacent to their shores, either are mistaken, or are deceiving others; a thing
which happens all too frequently with jurists when they exercise the authority
of their sacred profession not for justice and law, but in order to gain the
gratitude of the powerful. There is also an opinion of Marcianus, already cited
above in another connection, which, when carefully compared with the words of
Papinian,
3
can have no other interpretation than the one formerly adopted by
Johannes and Bartolus,
*
and now accepted by all learned men,
4
namely, that the jus prohibendi is in effect only
while occupation lasts; it loses its force if occupation
Edition: current; Page: [49] cease; and occupation once interrupted, even if it
had been continuous for a thousand years, loses its rights, as Paul de Castro
*
justly observes. And even if Marcianus had meant—which certainly was
not in his mind at all—that acquisition by prescription is to be recognized
wherever occupation is recognized, still it would have been absurd to apply
what had been said about a public river to the common sea, or what had been
said about an inlet or a river branch to a bay, since in the former case
prescription would hinder the use of something common to all by the law of
nations, and in the latter case would work no small injury to public use.
Moreover, another argument brought forward by Angeli based on the use of
aqueducts,
1
has quite properly been rejected by every one, being, as de Castro
pointed out, entirely aside from the point.

It is not true then that such prescription rises even at a time beyond the
period of the memory of man. For since the law absolutely denies all
prescription, not even immemorial time has any effect on the question; that is,
as Felinus
2
says, things imprescriptible by nature do not become prescriptible by
the mere efflux of immemorial time. Balbus admits the truth of these arguments,
3
but says that the opinion of Angeli is to be accepted on the ground
that time immemorial is believed to have the same validity as prerogative for
setting up a title, since a perfect title is presumed from such efflux of time.
Hence it appears that the jurists thought if some part of a state, say of the
Roman empire for example, at a period before the memory of man had exercised
such a right, that a title by prescription would
Edition: current; Page: [50] have to be admitted on that ground, exactly as if
there had been a previous grant from a Prince. But inasmuch as there is no one
who is sovereign of the whole human race with competence to grant to any man or
to any nation such a right against all other men, with the annihilation of that
pretext, title by prescription is also necessarily destroyed. Therefore the
opinion of the jurists is that not even an infinite lapse of time is able to
set up a right as between kings or independent nations.

Moreover Angeli brought forward a most foolish argument, affirming that even
if prescription could not create ownership, still an exception ought to be made
in favor of a possessor. Papinian however in unmistakable words says there is
no exception,
1
nor could he think otherwise, because in his day prescription was
itself an exception. It is therefore true, as expressed also in the laws of
Spain,
2
that prescription based on no matter how immemorial a time, sets up no
title to those things which are recognized as common to the use of mankind. One
reason among others which can be given for this definition is that any one who
uses a res communis does so evidently by virtue of common
and not private right, and because of the imperfect character of possession he
can therefore no more set up a legal title by prescription than can a
usufructuary.
3

A second reason not to be overlooked is that although a title and good faith
are presumed in a prescriptive right created by the efflux of immemorial time,
nevertheless if it appears from the nature of the thing itself that no title at
all can be established, and if thus there becomes evident bad faith—a thing
held to be permanent in a nation as well as in an individual—then prescription
fails because of a
Edition: current; Page: [51] double defect.
1
Also a third reason is that we have under consideration a merely
facultative right which is not prescriptible, as we shall show below.
*

But there is no end to their subtilties. There are jurists who in this case
would distinguish custom from prescription, so that if they are debarred from
the one, they may fall back upon the other. But the distinction which they set
up is most absurd. They say that the right of one person which is taken away
from him is given to another by prescription;
2
but that when any right is given to any one in such a way that it is
not taken away from any one else, then it is called custom. As if indeed the
right of navigation, which is common to all, upon being usurped by some one to
the exclusion of all others, would not necessarily when it became the property
of one be lost to all!

This error receives support from misinterpretation of what Paulus has to say
about a private right of possession on the sea.
3
Accursius
†
said that such a right could be acquired by privilege or custom. But
this addition which in no way agrees with the text of the jurist seems to be
rather the interpretation of a mischievous guesser than of a faithful
interpreter. The real meaning of the words of Paulus has been already
explained. Besides, if more careful consideration had been given to the words
of Ulpian
4
which almost immediately precede those of Paulus, a very different
assertion would have been made. For Ulpian acknowledges that if any one is
prohibited from fishing in front of
Edition: current; Page: [52] my house, such prohibition is a usurpation of right,
1
allowed, it is true, by custom, but based on no law, and that an action
for damages could not be denied the person thus prohibited from fishing.

He therefore condemns this practice, and calls it a usurpation; of the
Christian jurists Ambrose
2
does likewise, and both are right. For what is clearer than that custom
is not valid when it is diametrically opposed to the law of nature or of
nations?
3
Indeed, custom is a sort of affirmative right, which cannot invalidate
general or universal law. And it is a universal law that the sea and its use is
common to all. Moreover what we have said about prescription applies with equal
truth and force to custom; and if any one should investigate the opinions of
those who have differed upon this matter, he would find no other opinion but
that custom is established by privilege. No one has the power to confer a
privilege which is prejudicial to the rights of the human race; wherefore such
a custom has no force as between different states.

This entire question however has been most thoroughly treated by Vasquez,
4
that glory of Spain, who leaves nothing ever to be desired when it
comes to subtle examination of the law or to the exposition of the principles
of liberty. He lays down this thesis: ‘Places public and common to all by the
law of nations cannot become objects of prescription’. This thesis he supports
by many authorities, and then he subjoins the objections fabricated by Angeli
and others, which we have enumerated above. But before examining these
objections he makes the just and reasonable statement that the truth of all
these matters depends upon a true conception both of the law of nature and the
law of nations.
Edition: current; Page: [53] For, since the law of nature arises out of Divine
Providence, it is immutable; but a part of this natural law is the primary or
primitive law of nations, differing from the secondary or positive law of
nations, which is mutable. For if there are customs incompatible with the
primary law of nations, then, according to the judgment of Vasquez, they are
not customs belonging to men, but to wild beasts, customs which are corruptions
and abuses, not laws and usages. Therefore those customs cannot become
prescriptions by mere lapse of time, cannot be justified by the passage of any
law, cannot be established by the consent, the protection, or the practice even
of many nations. These statements he confirms by a number of examples, and
particularly by the testimony of Alphonse de Castro
1
the Spanish theologian.

‘It is evident therefore’, he says, ‘how much to be suspected is the opinion
of those persons mentioned above, who think that the Genoese or the Venetians
can without injustice prohibit other nations from navigating the gulfs or bays
of their respective seas, as if they had a prescriptive right to the very water
itself. Such an act is not only contrary to the laws,
2
but is contrary also to natural law or the primary law of nations,
which we have said is immutable. And this is seen to be true because by that
same law not only the seas or waters, but also all other immovables were
res communes. And although in later times there was a
partial abandonment of that law, in so far as concerns sovereignty and
ownership of lands—which by natural law at first were held in common, then
distinguished and divided, and thus finally separated from the primitive
community of use;—nevertheless
3
it was different as regards sovereignty over the sea, which from the
beginning of the world down to this
Edition: current; Page: [54] very day is and always has been a res
communis, and which, as is well known, has in no wise changed from that
status.

‘And although’, he continues, ‘I have often heard that a great many
Portuguese believe that their king has a prescriptive right over the navigation
of the vast seas of the West Indies (probably the East Indies too) such that
other nations are not allowed to traverse those waters; and although the common
people among our own Spaniards seem to be of the same opinion, namely, that
absolutely no one in the world except us Spaniards ourselves has the least
right to navigate the great and immense sea which stretches to the regions of
the Indies once subdued by our most powerful kings, as if that right has been
ours alone by prescription; although, I repeat, I have heard both these things,
nevertheless the belief of all those people is no less extravagantly foolish
than that of those who are always cherishing the same delusions with respect to
the Genoese and Venetians. Indeed the opinions of them all appear the more
manifestly absurd, because no one of those nations can erect a prescription
against itself; that is to say, not the Venetian republic, nor the Genoese
republic, nor the kingdom of Spain nor of Portugal can raise prescriptions
against rights they already possess by nature.
1
For the one who claims a prescriptive right and the one who suffers by
the establishment of such a claim must not be one and the same person.

‘Against other nations they are even much less competent to raise a
prescription, because the right of prescription is only a municipal right, as
we have shown above at some length. Therefore such a right ceases to have any
effect as between rulers or nations who do not recognize a superior in the
temporal domain. For so far as the merely municipal laws of any place are
concerned, they do not
Edition: current; Page: [55] affect foreign peoples, nations, or even individuals,
any more than if they did not exist or never had existed. Therefore it was
necessary to have recourse to the common law of nations, primary as well as
secondary, and to use a law which clearly had not admitted any such
prescription and usurpation of the sea. For today the use of the waters is
common, exactly as it has been since the creation of the world. Therefore no
man has a right nor can acquire a right over the seas and waters which would be
prejudicial to their common use. Besides, there is both in natural and divine
law that famous rule: ‘Whatsoever ye would that men should not do to you, do
not ye even so to them’. Hence it follows, since navigation cannot harm any one
except the navigator himself, it is only just that no one either can or ought
to be interdicted therefrom, lest nature, free in her own realm, and least
hurtful to herself, be found impeding the liberty of navigation, and thus
offending against the accepted precept and rule that all things are supposed to
be permitted which are not found expressly forbidden.
1
Besides, not only would it be contrary to natural law to wish to
prevent such free navigation, but we are even bound to do the opposite, that
is, bound to assist such navigation in whatever way we can, when it can be done
without any prejudice to ourselves’.

After Vasquez had established his point by the help of many authorities both
human and divine, he added:
2
‘It appears then, from what has gone before that the opinion held by
Johannes Faber, Angeli, Baldus, and Franciscus Balbus, whom we have cited
above, is not to be trusted, because they think that places common by the law
of nations, even if not open to acquisition by prescription, can nevertheless
be acquired by custom; but this is entirely false, and
Edition: current; Page: [56] is a teaching which is both obscure and vague, which
lacks the faintest glimmer of reasonableness, and which sets up a law in word
but not in fact.
1
For it is well established from the examples taken from the seas of the
Spaniards, Portuguese, Venetians, Genoese, and others, that an exclusive right
of navigation and a right of prohibiting others from navigation is no more to
be acquired by custom than by prescription.
2
And it is apparent that the reason is the same in both cases. And since
according to the laws and reasons adduced above this would be contrary to
natural equity and would not bring benefit but only injury, therefore as it
could not be introduced by an express law, neither could it be introduced by a
tacit or implied law, and that is what custom is.
3
And far from justifying itself by any lapse of time, it rather becomes
worse, and every day more injurious’.

Vasquez next shows that from the time of the earliest occupation of the
earth every people possessed the right of hunting in its own territory, and of
fishing in its own rivers. After those rights were once separated from the
ancient community of rights in such a way that they admitted of particular
attachments, they could be acquired by prescription based upon such an efflux
of time that “the memory of its beginning does not exist,” as if by the tacit
permission of a nation. This comes about, however, by prescription and not by
custom, because only the condition of him who acquires is bettered, while that
of all other persons is made worse. Then after Vasquez had enumerated three
conditions which are requisite in order that a private right of fishing in a
river may become a right by prescription, he continues as follows:

‘But what are we to say as regards the sea? There is
Edition: current; Page: [57] more to say about it, because even the combination of
the three conditions mentioned is not sufficient here for the acquisition of
such a right. The reason for the difference between the sea on one hand and
land and rivers on the other, is that in the case of the sea the same primitive
right of nations regarding fishing and navigation which existed in the earliest
times, still today exists undiminished and always will, and because that right
was never separated from the community right of all mankind, and attached to
any person or group of persons. But in the latter case, that of the land and
rivers, it was different, as we have already set forth.

‘But why, it is asked, does the secondary law of nations which brings about
this separation when we consider lands and rivers cease to operate in the same
way when we consider the sea? I reply, because in the former case it was
expedient and necessary. For every one admits that if a great many persons hunt
on the land or fish in a river, the forest is easily exhausted of wild animals
and the river of fish, but such a contingency is impossible in the case of the
sea. Again, the navigation of rivers is easily lessened and impeded by
constructions placed therein, but this is not true of the sea. Again, a river
is easily emptied by means of aqueducts but the sea cannot be emptied by any
such means.
1
Therefore there is not equal reason on both sides.

‘Neither does what we have said above about the common use of waters,
springs, and rivers, apply in this case, for common use is recognized in them
all for purposes of drinking and the like, such usages namely as do not injure
at all or in the slightest degree him who owns a river or has some other right
in one.
2
These are trifles for which we have no time. What makes for our
contention is the fact that no lapse of time will give a prescriptive right to
anything unjust. Therefore an unjust law is not capable of
Edition: current; Page: [58] erecting a prescriptive right or of being justified
by efflux of time’. A little farther on Vasquez says: ‘Things which are
imprescriptible by the disposition of the law, may not become objects of
prescription even after the lapse of a thousand years’. This statement he
supports by countless citations from the jurists.
1

Every one perceives that no usurpation no matter how long continued is
competent to intercept the use of a res communis. And it
must also be added, that the authority of those who hold dissenting opinions
cannot possibly be applied to the question here at issue. For they are talking
about the Mediterranean, we are talking about the Ocean; they speak of a gulf,
we of the boundless sea; and from the point of view of occupation these are
wholly different things. And too, those peoples, to whom the authorities just
mentioned concede prescription, the Venetians and Genoese for example, possess
a continuous shore line on the sea, but it is clear that not even that kind of
possession can be claimed for the Portuguese.

Further, even if mere lapse of time, as some think, could establish a right
by prescription over public property, still the conditions absolutely
indispensable for the creation of such a right are in this case absent. The
conditions demanded are these: first, all jurists teach that he who sets up a
prescriptive right of this sort shall have been in actual possession not only
for a considerable period, but from time immemorial; next, that during all that
time no one else shall have exercised the same right of possession unless by
permission of that possessor or clandestinely; besides that, it is necessary
that he shall have prevented other persons wishing to use his possession from
so doing, and that such measures be a matter of common knowledge and done by
the suffrance of those concerned in the matter. For even if
Edition: current; Page: [59] he had continuously exercised his right of
possession, and had always prevented from using his possession some of those who wished to do so, but not all; then, because some had been
prevented from exercising and others freely allowed to
exercise that use, that kind of possession according to the opinion of the
jurists, is not sufficient to establish a right by prescription.

It is clear therefore that all these conditions should be present, both
because law is opposed to the prescription of public things, and in order that
he who sets up such a prescription may seem to have used his own private right,
not a public right, and that too by continuous possession.

Now, inasmuch as time beyond the period of the memory of man is demanded for
the creation of a prescriptive right, it is not always sufficient, as the best
commentators point out, to prove the lapse of a hundred years, but as no one
would be alive who had seen or heard the contrary, the tradition handed down to
us by our ancestors ought to be undisputed. It was during the reign of King
John,
1
in the year of our Lord 1477, at the time of the wars in Africa, that
the Portuguese began to push their discoveries first into the more distant
parts of the Ocean. Twenty years later, during the reign of King Emmanuel, they
rounded the Cape of Good Hope, and somewhat later yet, reached Malacca, and the
islands beyond, the very islands, indeed, to which the Dutch began to sail in
the year 1595, that is, well within a hundred years of the time that the
Portuguese first arrived. And in truth even in that interval, the usurpation of
rights there by other parties had interrupted the competence of everybody else
to create a prescriptive right. For example, from the year 1519, the Spaniards
rendered the possession by the Portuguese of the sea around the Malaccas a very
uncertain one. Even the French and
Edition: current; Page: [60] English made their way to those newly discovered
places not secretly, but by force of arms. And besides these, the inhabitants
of the entire coast of Africa and Asia constantly used for fishing and
navigation that part of the sea nearest their own several coasts, and were
never interdicted from such use by the Portuguese.

The conclusion of the whole matter therefore is that the Portuguese are in
possession of no right whereby they may interdict to any nation whatsoever the
navigation of the Ocean to the East Indies.

Edition: current; Page: [61]

CHAPTER VIII: By the Law of Nations trade is free to
all persons whatsoever

If however the Portuguese claim that they have an exclusive right to trade
with the East Indies, their claim will be refuted by practically all the same
arguments which already have been brought forward. Nevertheless I shall repeat
them briefly, and apply them to this particular claim.

By the law of nations the principle was introduced that the opportunity to
engage in trade, of which no one can be deprived,
1
should be free to all men. This principle, inasmuch as its application
was continually necessary after the distinctions of private ownerships were
made, can therefore be seen to have had a very remote origin. Aristotle, in a
very clever phrase, in his work entitled the Politics,
2
has said that the art of exchange is a completion of the independence
which Nature requires. Therefore trade ought to be common to all according to
the law of nations, not only in a negative but also in a positive, or as the
jurists say, affirmative sense.
3
The things that come under the former category are subject to change,
those of the latter category are not. This statement is to be explained in the
following way.

Nature had given all things to all men. But since men were prevented from
using many things which were desirable in every day life because they lived so
far apart,
Edition: current; Page: [62] and because, as we have said above, everything was
not found everywhere, it was necessary to transport things from one place to
another; not that there was yet an interchange of commodities, but that people
were accustomed to make reciprocal use of things found in one another’s
territory according to their own judgment. They say that trade arose among the
Chinese in about this way. Things were deposited at places out in the desert
and left to the good faith and conscience of those who exchanged things of
their own for what they took.
1

But when movables passed into private ownership (a change brought about by
necessity, as has been explained above), straightway there arose a method of
exchange by which the lack of one person was supplemented by that of which
another person had an over supply.
2
Hence commerce was born out of necessity for the commodities of life,
as Pliny shows by a citation from Homer.
3
But after immovables also began to be recognized as private property,
the consequent annihilation of universal community of use made commerce a
necessity not only between men whose habitations were far apart but even
between men who were neighbors; and in order that trade might be carried on
more easily, somewhat later they invented money, which, as the derivation of
the word shows, is a civic institution.
4

Therefore the universal basis of all contracts, namely exchange, is derived
from nature; but some particular kinds of exchange, and the money payment
itself, are derived from law;
5
although the older commentators on the law have not made this
distinction sufficiently clear. Nevertheless all
Edition: current; Page: [63] authorities agree that the ownership of things,
particularly of movables, arises out of the primary law of nations, and that
all contracts in which a price is not mentioned, are derived from the same
source.
1
The philosophers
2
distinguish two kinds of exchange using Greek words which we shall take
the liberty to translate as ‘wholesale’ and ‘retail’ trade. The former, as the
Greek word shows, signifies trade or exchange between widely separated nations,
and it ranks first in the order of Nature, as is shown in Plato’s Republic.
3
The latter seems to be the same kind of exchange that Aristotle calls
by another Greek word
4
which means retail or shop trade between citizens. Aristotle makes a
further division of wholesale trade into overland and overseas trade.
5
But of the two, retail trade is the more petty and sordid, and
wholesale the more honorable; but most honorable of all is the wholesale
overseas trade, because it makes so many people sharers in so many things.
6

Hence Ulpian says that the maintenance of ships is the highest duty of a
state, because it is an absolutely natural necessity, but that the maintenance
of hucksters has not the same value. In another place Aristotle says: “For the
art of exchange extends to all possessions, and it arises at first in a natural
manner from the circumstance that some have too little, others too much.”
7
And Seneca is also to be cited in this connection for he has said that
buying and selling is the law of nations.
8

Therefore freedom of trade is based on a primitive right of nations which
has a natural and permanent cause; and
Edition: current; Page: [64] so that right cannot be destroyed, or at all events
it may not be destroyed except by the consent of all nations. So far is that
from being the case, that any one nation may justly oppose in any way, any
other two nations that desire to enter into a mutual and exclusive contractual
relation.

Edition: current; Page: [65]

CHAPTER IX: Trade with the East Indies does not
belong to the Portuguese by title of occupation

Neither discovery nor occupation [which have been fully treated in Chapters
II and V], is to be invoked on the point here under consideration, because the
right of carrying on trade is not something corporal, which can be physically
seized; nor would discovery or occupation help the case of the Portuguese even
if they had been the very first persons to trade with the East Indies, although
such a claim would be entirely untenable and false. For since in the beginning
peoples set out along different paths, it was necessary that some become the
first traders, nevertheless it is absolutely certain that those traders did not
on that account acquire any rights. Wherefore if the Portuguese have any right
by virtue of which they alone may trade with the East
Indies, that right like other servitudes ought to arise from concession, either
express or tacit, that is to say, from prescription. Otherwise no such right
can exist.

Edition: current; Page: [66]

CHAPTER X: Trade with the East Indies does not
belong to the Portuguese by virtue of title based on the Papal Donation

No one has granted it except perhaps the Pope, and he did not have the
power.
1
For no one can give away what he does not himself possess. But the
Pope, unless he were the temporal master of the whole world, which sensible men
deny, cannot say that the universal right in respect of trade belongs to him.
Especially is this true since trade has to do only with material gains, and has
no concern at all with spiritual matters, outside of which, as all admit, Papal
power ceases. Besides, if the Pope wished to give that right to the Portuguese
alone, and to deprive all other men of the same right, he would be doing a
double injustice. In the first place, he would do an injustice to the people of
the East Indies who, placed as we have said outside the Church, are in no way
subjects of the Pope. Therefore, since the Pope cannot take away from them
anything that is theirs, he could not take away their right of trading with
whomsoever they please. In the second place, he would do an injustice to all
other men both Christian and non-Christian, from whom he could not take that
same right without a hearing. Besides, what are we to say of the fact that not
even temporal lords in their own dominions are competent to prohibit the
freedom of trade, as has been demonstrated above by reasonable and
authoritative statements?

Therefore it must be acknowledged, that the authority of the Pope has
absolutely no force against the eternal law of nature and of nations, from
whence came that liberty which is destined to endure for ever and ever.

Edition: current; Page: [67]

CHAPTER XI: Trade with the East Indies does not
belong to the Portuguese by title of prescription or custom

Last of all, prescription, or if you prefer the term, custom.
1
We have shown that according to Vasquez, neither prescription nor
custom had any force as between free nations or the rulers of different
peoples, or any force against those principles which were introduced by
primitive law. And here as before, mere efflux of time does not bring it to
pass that the right of trade, which does not partake of the nature of
ownership, becomes a private possession. Now in this case neither title nor
good faith can be shown, and inasmuch as good faith is clearly absent,
according to legal rules prescription will not be called a right, but an
injury.

Nay, the very possession involved in trading seems not to have arisen out of
a private right, but out of a public right which belongs equally to all; so on
the other hand, because nations perhaps neglected to trade with the East
Indies, it must not be presumed that they did so as a favor to the Portuguese,
but because they believed it to be to their own best interests. But nothing
stands in their way, when once expediency shall have persuaded them, to prevent
them from doing what they had not previously done. For the jurists
2
have handed down as incontestable the principle that where things
arbitrable or facultative are such that they produce nothing more than the
facultative act per se, but do not create a new right,
that in all such cases not even a thousand years will create a title by
prescription or custom.
Edition: current; Page: [68] This, as Vasquez points out, acts both affirmatively
and negatively. For I am not compelled to do what I have hitherto done of my
own free will, nor am I compelled to stop doing what I have never done.

What moreover could be more absurd then to deduce from the fact that we as
individuals are not able always to conclude a bargain with other individuals,
that there is not preserved to us for the future the right of bargaining with
them if opportunity shall have offered? The same Vasquez has also most justly
said that not even the lapse of infinite time establishes a right which seems
to have arisen from necessity rather than choice.

Therefore in order to establish a prescriptive right to the trade with the
East Indies the Portuguese would be compelled to prove coercion. But since in
such a case as this coercion is contrary to the law of nature and obnoxious to
all mankind, it cannot establish a right.
1
Next, that coercion must needs have been in existence for so long a
time that “the memory of its beginning does not exist”; that, however, is so
far from being the case that not even a hundred years had elapsed since the
Venetians controlled nearly the entire trade with the East Indies, carrying it
via Alexandria.
2
Again, the coercion ought to have been such that it was not resisted;
but the English and the French and other nations besides, did resist it.
Finally, it is not sufficient that some be coerced, but it
is indispensable that all be coerced, because the
possession of freedom of trade is preserved to all by a failure to use coercion
upon even one person. Moreover, the Arabians and the Chinese are at the present
day still carrying on with the people of the East Indies a trade which has been
uninterrupted for several centuries.

Portuguese usurpation is worthless.

Edition: current; Page: [69]

CHAPTER XII: The Portuguese prohibition of trade has
no foundation in equity

From what has been said thus far it is easy to see the blind cupidity of
those who in order not to admit any one else to a share in their gains, strive
to still their consciences by the very arguments which the Spanish jurists,
interested too in the same case, show to be absolutely empty.
1
For they intimate as clearly as they can that as regards India all the
pretexts employed, are far fetched and unjust. They add that this right was
never seriously approved by the swarm of theologians. Indeed, what is more
unjust than the complaint made by the Portuguese that their profits are drained
off by a freedom which is incompatible with their license? An incontrovertible
rule of law lays down that a man who uses his own right is justly presumed to
be contriving neither a deceit nor a fraud, in fact not even to be doing any
one an injury. This is particularly true, if he has no intention to harm any
one, but only to increase his own property.
2
For what ought to be considered is the chief and ultimate intent not
the irrelevant consequence. Indeed, if we may with propriety agree with Ulpian,
he is not doing an injury, but he is preventing some one from getting a profit
which another was previously enjoying.

Moreover it is natural and conformable to the highest law as well as equity,
that when a gain open to all is concerned every person prefers it for himself
rather than for
Edition: current; Page: [70] another, even if that other had already discovered
it.
1
Who would countenance an artisan who complained that another artisan
was taking away his profits by the exercise of the same craft? But the cause of
the Dutch is the more reasonable, because their advantage in this matter is
bound up with the advantage of the whole human race, an advantage which the
Portuguese are trying to destroy.
2
Nor will it be correct to say, that this is done in rivalry, as Vasquez
shows in a similar case. For clearly we must either deny or affirm that this is
done not only in honorable but in most honorable rivalry, and, according to
Hesiod, ‘This rivalry is honorable for mortal men’.
3
For, says Vasquez, if any one should be so moved by love for his fellow
men that he sells grain in hard times for a lower price than usual, he would
diminish the wicked oppression of those men who in the same season of cruel
financial stringency would have sold their grain at a higher price than usual.
But, some one will object, by such methods the profits of others will be made
less. ‘We do not deny it’, says Vasquez, ‘but they are made less to the
corresponding advantage of all other men. And would that the profits of all
Rulers and Tyrants of this world could be thus lessened’!

Indeed can anything more unjust be conceived than for the Spaniards to hold
the entire world tributary, so that it is not permissible either to buy or to
sell except at their good pleasure?
4
In all states we heap odium upon grain speculators and even bring them
to punishment; and in very truth there seems to be no other sort of business so
disgraceful as that of forcing up prices in the grain market.
5
That is not
Edition: current; Page: [71] to be wondered at, for such speculators are doing an
injury to nature, who, as Aristotle says, is fertile for all alike.
1
Accordingly it ought not to be supposed that trade was invented for the
benefit of a few, but in order that the lack of one would be counterbalanced by
the oversupply of another, a fair return also being guaranteed to all who take
upon themselves the work and the danger of transport.

Is the same thing then which is considered grievous and pernicious in the
smaller community of a state to be put up with at all in that great community
of the human race? Shall the people of Spain, forsooth, assume a monopoly of
all the world? Ambrose inveighs against those who interfere with the freedom of
the sea;
2
Augustine against those who obstruct the overland routes; and Gregory
of Nazianzus
3
against those who buy goods and hold them, and thus (as he eloquently
says) make profits for themselves alone out of the helplessness and need of
others. Indeed in the opinion of this wise and holy man any person who holds
back grain and thus forces up the market price ought to be given over to public
punishment and be adjudged worthy of death.

Therefore the Portuguese may cry as loud and as long as they shall please:
‘You are cutting down our profits’! The Dutch will answer: ‘Nay! we are but
looking out for our own interests! Are you angry because we share with you in
the winds and the sea? Pray, who had promised that you would always have those
advantages? You are secure in the possession of that with which we are quite
content’.

Edition: current; Page: [72]

CHAPTER XIII: The Dutch must maintain their right of
trade with the East Indies by peace, by treaty, or by war

Wherefore since both law and equity demand that trade with the East Indies
be as free to us as to any one else, it follows that we are to maintain at all
hazards that freedom which is ours by nature, either by coming to a peace
agreement with the Spaniards, or by concluding a treaty, or by continuing the
war. So far as peace is concerned, it is well known that there are two kinds of
peace, one made on terms of equality, the other on unequal terms. The Greeks
1
call the former kind a compact between equals, the latter an enjoined
truce; the former is meant for high souled men, the latter for servile spirits.
Demosthenes in his speech on the liberty of the Rhodians
2
says that it was necessary for those who wished to be free to keep away
from treaties which were imposed upon them, because such treaties were almost
the same as slavery. Such conditions are all those by which one party is
lessened in its own right, according to the definition of Isocrates.
3
For if, as Cicero says,
4
wars must be undertaken in order that people may live in peace
unharmed, it follows that peace must be called not a pact which entails slavery
but which brings undisturbed liberty, especially as peace and justice according
to
Edition: current; Page: [73] the opinion of many philosophers and theologians
1
differ more in name than in fact, and as peace is a harmonious
agreement based not on individual whim, but on well ordered regulations.

If however a truce is arranged for, it is quite clear from the very nature
of a truce, that during its continuance no one’s condition ought to change for
the worse, inasmuch as both parties stand on the equivalent of a
uti possidetis.

But if we are driven into war by the injustice of our enemies, the justice
of our cause ought to bring hope and confidence in a happy outcome. “For,” as
Demosthenes has said, “every one fights his hardest to recover what he has
lost; but when men endeavor to gain at the expense of others it is not so.”
2
The Emperor Alexander has expressed his idea in this way: ‘Those who
begin unjust deeds, must bear the greatest blame; but those who repel
aggressors are twice armed, both with courage because of their just cause, and
with the highest hope because they are not doing a wrong, but are warding off a
wrong’.

Therefore, if it be necessary, arise, O nation unconquered on the sea, and
fight boldly, not only for your own liberty, but for that of the human race.
“Nor let it fright thee that their fleet is winged, each ship, with an hundred
oars. The sea whereon it sails will have none of it. And though the prows bear
figures threatening to cast rocks such as Centaurs throw, thou shalt find them
but hollow planks and painted terrors. ’Tis his cause that makes or mars a
soldier’s strength. If the cause be not just, shame strikes the weapon from his
hands.”
3

Edition: current; Page: [74]

If many writers, Augustine himself
1
among them, believed it was right to take up arms because innocent
passage was refused across foreign territory, how much more justly will arms be
taken up against those from whom the demand is made of the common and innocent
use of the sea, which by the law of nature is common to all? If those nations
which interdicted others from trade on their own soil are justly attacked, what
of those nations which separate by force and interrupt the mutual intercourse
of peoples over whom they have no rights at all? If this case should be taken
into court, there can be no doubt what opinion ought to be anticipated from a
just judge. The praetor’s law says:
2
‘I forbid force to be used in preventing any one from sailing a ship or
a boat on a public river, or from unloading his cargo on the bank’. The
commentators say that the injunction must be applied in the same manner to the
sea and to the seashore. Labeo, for example, in commenting on the praetor’s
edict,
3
‘Let nothing be done in a public river or on its bank, by which a
landing or a channel for shipping be obstructed’, said there was a similar
interdict which applied to the sea, namely,
4
‘Let nothing be done on the sea or on the seashore by which a harbor, a
landing, or a channel for shipping be obstructed’.

Now after this explicit prohibition, if any one be prevented from navigating
the sea, or not allowed to sell or to make use of his own wares and products,
Ulpian says that he can bring an action for damages on that ground.
5
Also the theologians and the casuists agree that he who prevents
another from buying or selling, or who puts his
Edition: current; Page: [75] private interests before the public and common
interests, or who in any way hinders another in the use of something which is
his by common right, is held in damages to complete restitution in an amount
fixed by an honorable arbitrator.

Following these principles a good judge would award to the Dutch the freedom
of trade, and would forbid the Portuguese and others from using force to hinder
that freedom, and would order the payment of just damages. But when a judgment
which would be rendered in a court cannot be obtained, it should with justice
be demanded in a war. Augustine
1
acknowledges this when he says: ‘The injustice of an adversary brings a
just war’. Cicero also says:
2
“There are two ways of settling a dispute; first, by discussion;
second, by physical force; we must resort to force only in case we may not
avail ourselves of discussion.” And King Theodoric says: ‘Recourse must then be
had to arms when justice can find no lodgment in an adversary’s heart’.
Pomponius, however, has handed down a decision which has more bearing on our
argument
3
than any of the citations already made. He declared that the man who
seized a thing common to all to the prejudice of every one else must be
forcibly prevented from so doing. The theologians also say that just as war is
righteously undertaken in defense of individual property, so no less
righteously is it undertaken in behalf of the use of those things which by
natural law ought to be common property. Therefore he who closes up roads and
hinders the export of merchandise ought to be prevented from so doing
via facti, even without waiting for any public
authority.

Since these things are so, there need not be the slightest
Edition: current; Page: [76] fear that God will prosper the efforts of those who
violate that most stable law of nature which He himself has instituted, or that
even men will allow those to go unpunished who for the sake alone of private
gain oppose a common benefit of the human race.

Edition: current; Page: [77]

APPENDIX Two letters of Philip
III, King of Spain

As several letters of the King of Spain have come of late into our hands, in
which his design and that of the Portuguese is clearly disclosed, it seemed
worth while to translate into Latin two of them which had particular bearing
upon the controversy at issue, and to append them here.

LETTER I

Together with this letter will come to you a copy printed in type of an
edict which I have taken much pains to draw up, by which, for reasons which you
will see expressed, and for other reasons which are consonant with my
interests, I prohibit all commerce of foreigners in India itself, and in all
other regions across the seas. As this matter is of the greatest importance and
serviceableness, and ought to be carried out with the highest zeal, I command
you, as soon as you shall have received this letter and edict, to further with
all diligence its publication in all places and districts under your
jurisdiction, and to carry out the provisions of the edict without exception of
any person whatsoever, no matter what his quality, age, or condition, and
without delay and excuse, and to proceed to the fulfilment of this command with
the full power of your authority, no delay, appeal, or obstacle to the
contrary, being admitted, of any kind, sort, or quality.

Therefore I order that this duty be discharged by those
Edition: current; Page: [78] officers to whom its execution belongs, and that they
be informed that not only will those who disobey serve me ill, but that I will
punish them by depriving them of the offices in which they now serve me.

Further, inasmuch as it has been reported to me that within your
jurisdiction there are sojourning many foreigners of different nations,
Italians, French, Germans, and men of the Low Countries, the larger part of
whom as we know came there by way of Persia and Turkey, and not through our
realm; and inasmuch as, if this edict be rigidly enforced against those persons
to the letter, some inconveniences might follow, if they should escape to the
Moors, our enemies, and make known to our neighbors the disposition of my
forces, and thus show ways that they might be able to harm my dominion:
Therefore, I wish you to carry out the provisions of this edict as the
exigencies of circumstances and occasion demand, and to use all prudence
necessary in order to avoid those difficulties, taking especial pains to keep
all foreigners in your power, and to guard them in accordance with their
individual rank, so that they may have no opportunity to attempt anything
prejudicial to our power, that thus I may attain fully that end which I have
set forth in this edict.

Given at Lisbon, on the 28th of November in the year of our Lord, 1606.
Signed by the king, and addressed: For the king, to Don Martin Alphonso de
Castro, his Councillor, and Viceroy for the East Indies.

LETTER II

To our beloved viceroy, I, the King send many
greetings:

Although I consider it absolutely certain that your presence and the forces
which you took with you into those Eastern regions, guarantee that our enemies,
the Dutch,
Edition: current; Page: [79] who infest those quarters as well as the natives who
give them a welcome reception, will be so thoroughly punished that neither the
one nor the other will ever dare such practices in the future: still it will be
expedient for the protection of our interests, that, when you shall return to
Goa, you leave in those parts of the sea a fleet large and capable enough to do
the business, and also that you delegate the supreme command of that fleet to
Andrea Hurtado de Mendoza, or to any one else whom you shall consider better
fitted for this post. I rely upon your affection for me, knowing that in this
matter you will do nothing but what will be most useful to my interests.

Given at Madrid the 27th day of January in the year of our Lord 1607. Signed
by the king, and addressed: For the king, to Don Martin Alfonso de Castro, his
Councillor, and Viceroy for the East Indies.

For the freedom of the seas and the relation of Grotius to the doctrine, see
Ernest Nys’s Les Origines du Droit International (1894),
pp. 379–387, and the same author’s Etudes de Droit
International et de Droit Politique, 2e série (1901),
Une Bataille de Livres, pp. 260–272. For an account in
English see Walker’s History of the Law of Nations, Vol. I
(1899), pp. 278–283.

For an interesting sketch of the illustrious author of the Mare Liberum, see Motley’s The Life and Death
of John of Barneveld, Vol. II, Chap. XXII; for an analysis of Grotius’
views on the law of nations, see Hallam’s Introduction to the
Literature of Europe (4th edition), Vol. II, Part III, Chap. IV, Sec. III;
for an account of Grotius as a humanist, see Sandys’ History of
Classical Scholarship (1908), Vol. II, pp. 315–319.

In support of the view that Grotius appeared as counsel in cases arising out
of captures made by vessels in the service of the Dutch East India Company, and
that the treatise, De Jure Praedae, is a legal brief, see
R. Fruin’s Een Onuitgegeven Werk van Hugo De Groot in
Verspreide Geschriften, Vol. III, pp. 367–445. The
following passages are quoted from this remarkable essay:

“While busy with the sale of the goods [of the captured merchantman
Catherine, which had been unloaded in the Amsterdam
arsenal], the process of adjudicating the booty before the admiralty court was
conducted in the usual forms. Claimants: Advocate General of Holland, the Board
of eight Aldermen, and Admiral Heemskerck; . . . on Thursday, September 9,
1604, final sentence was rendered, and ‘the merchantman together with the goods
taken from it were declared forfeited and confiscated’ ” (pp. 389–390).

“Hulsius in some measure replaces what the fire at the Marine Arsenal has
robbed us of; among other records he has preserved for us in his
Achte Schiffart the sentence pronounced in this matter by
the admiralty, and of which we have knowledge from no other sources. From it we
learn the grounds upon which the claimants demanded the adjudication of the
booty. These grounds are the same twelve which De Groot discusses in his book.
. . . This concordance can be explained on the ground that De Groot must have
had acquaintance with the sentence; but he was not a man merely to repeat what
others had before him witnessed. I should be inclined to feel that in the
process he had served as counsel for the Company, and that he himself was one
of the authors of the written claim upon which the sentence was based. It would
not then be surprising if in his book he should develop at greater length and
throw light upon what had already been set forth in the claim” (pp.
390–391).

“I cannot state definitely that Hugo De Groot was persuaded by the Directors
to write such an argument; I have been unable to discover any evidence to that
end. That he was in close relations with the Company, he himself says in a
letter of later date, addressed to his brother. Nor can there be any doubt that
in writing his work he made use of the archives of the United Company and of
its predecessor. If the supposition, which I have elsewhere ventured to make is
correct, that is to say, that in the conduct of the case he appeared as
advocate for the Company, it would then appear most probable that, after
consultation with the directors, he set about writing his book, which was to be
a second plea in their behalf” (p. 403).

For the account which Grotius himself gives of the incident, see his
Annales et Historiae de Rebus Belgicis ab Obitu Philippi Regis
usque ad Inducias Anni 1609, written in 1612, but first published in 1658,
Book 1, p. 429.

For a fuller account of the circumstances under which the treatise on the
law of prize was written, see Hamaker’s edition of the De Jure
Praedae, pp. vii-viii. The distinguished historian and scholar, Robert J.
Fruin, after an exhaustive examination of the evidence, informed Hamaker that
Grotius was retained by the Company to prepare the commentary on the law of
prize. The English translation of Hamaker’s exact statement reads as follows:
“Fruin is of the opinion that he [Grotius] undertook this work at the instance
of the Company, and that he appeared in it as their spokesman.”

For an analysis of the commentary De Jure Praedae and
the circumstances under which it was written, see Jules Basdevant’s study on
Grotius, pp. 131–137, 155–179, in Pillet’s Les Fondateurs du
Droit International (1904).

Selden’s Mare Clausum was not the only defense of
England, nor was the Mare Liberum the only lance which
Grotius broke for the freedom of the seas. In 1613 William Welwod, professor of
Civil Law at the University of Aberdeen, published a little book entitled
An Abridgement of all the Sea-Lawes, in which he
maintained the English side of the question, of which Title XXVII, pp. 61–72,
deals with the community and property of the seas. Two years later Welwod
published a second work, this time in Latin, entitled De
Dominio Maris Juribusque ad Dominium praecipue Spectantibus Assertia Brevis ac
Methodica.

Grotius prepared, but did not publish, a reply to Welwod’s first attack,
entitled Defensio Capitis Quinti Maris Liberi Oppugnati a
Gulielmo Welwodo Juris Civilis Professore, Capite XXVII ejus Libri Scripti
Anglica Sermone cui Titulum Fecit Compendium Legum Maritimarum. It was
discovered at the same time as the commentary De Jure
Praedae and was published in 1872 in Muller’s Mare
Clausum, Bijdrage tot de geschiedenis der rivaliteit van Engeland en Nederland
in de zeventiende eeuw.

Institutes II, 1; Digest I, 8, 4; cf. Gentilis, De jure belli I, 19; cf.
Code IV, 63, 4 [Grotius refers particularly to his famous predecessor Albericus
Gentilis (1552–1608), an Italian who came to England and was appointed to the
chair of Regius Professor of Civil Law at Oxford. He published his De Jure
Belli in 1558].

Diodorus Siculus XI; Plutarch, Pericles XXIX, 4. [The Athenian decree
prohibiting the Megarians from trading with Athens or any part of the Athenian
Empire was one of the leading causes of the Peloponnesian War.]

Victoria, De Indis II, n. 1–7; Covarruvias, in c. Peccatum, § 9, n. 4, ibi
Quinta [Franciscus de Victoria (1480–1546), the famous Spanish Scholastic, a
Dominican, and Professor of Theology at Salamanca from 1521 until his death.
His thirteen Relectiones (De Indis is no. V) were published (‘vitiosa et
corrupta’) in 1557 after his death; the 1686 Cologne edition is held to be the
best.

Diego Covarruvias (1512–1577), styled the Bartolo of Spain. He should
probably be credited with formulating the reform decrees of the Council of
Trent. The 5 vol. Antwerp 1762 edition of his works is the best.]

Andrea Alciati, Commentaria VII, 130; Covarruvias in c. Peccatum, p. 2 § 9;
Bartolus on Code I, 11 [Alciati (1492–1550) was made Comes Palatinus by the
Emperor Charles V, and offered a Cardinal’s hat by Pope Paul III, which he
refused, but he did become a Protonotarius Apostolicus].

Nonius Marcellus, On the various significations of speech, under the word
‘occupare’; cf. Connan, Commentaries on the civil law III, 3; Donellus
[Doneau], Commentaries on the civil law IV, 10. [François de Connan
(1508–1551), a French jurisconsult, a pupil of Alciati; Hugues Doneau
(1527–1591) a famous jurisconsult, who wrote many volumes of commentaries on
the Digest and the Code.]

In his Works and Days [The entire passage as translated by A. W. Mair
(Oxford translation, page 1) is: “For when he that hath no business looketh on
him that is rich, he hasteth to plow and to array his house: and neighbour
vieth with neighbour hasting to be rich: good is this Strife for men.”].